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PRINCIPLES  OF  AMERICAN 
STATE   ADMINISTRATION 


PRINCIPLES  OF  AMERICAN 
STATE  ADMINISTRATION 


BY 


JOHN  MABRY  MATHEWS,  Ph.D. 

ASSISTANT    PROFESSOR    OF    POLITICAL   SCIENCE 
IN   THE   UNIVERSITY   OF   ILLINOIS 


D.  APPLETON  AND   COMPANY 
NEW    YORK    AND    LONDON 

19  17 


Copyright,  1917,  by 
D.  APPLETON  AND  COMPANY 


Printed  in  the  United  States  of  America 


TO 

WESTEL  WOODBURY  WILLOUGHBY 

WITH   TRUE   REGARD 


PREFACE 

It  has  often  been  remarked  that,  in  recent  times,  constitu- 
tional questions,  which  formerly  held  the  front  of  the  stage, 
have  moved  to  the  background,  and  problems  of  administration 
have  become  increasingly  more  prominent  and  urgent.  Public 
attention  is  today  being  directed  to  the  administrative  side  of 
government  to  a  greater  extent  than  ever  before.  It  is  now 
realized  that  efficient  administration,  formerly  considered 
more  appropriate  to  monarchical  governments,  is  no  less  essen- 
tial to  a  democratic  government  and  is,  indeed,  intimately  con- 
nected with  the  furtherance  of  true  democracy.  Acquaintance 
with  the  administrative  activities  of  the  American  state  gov- 
ernments is  of  peculiar  importance  to  every  citizen  of  the 
forty-eight  commonwealths,  since  they  constantly  affect  his 
life  and  well-being  at  manifold  and  vital  points. 

In  view  of  these  facts,  it  is  surprising  that  there  has  hereto- 
fore been  no  published  attempt  to  describe  comprehensively 
and  systematically  the  organization  and  functions  of  the  state 
administrative  authorities.  We  have  several  such  descriptions 
devoted  to  particular  states  or  to  certain  phases  of  state  ad- 
ministration, but  they  are  usually  too  specialized  or  narrow  in 
scope  to  be  of  more  than  local  or  restricted  interest.  The 
present  volume  has  been  prepared  in  the  hope  that  it  may  fill, 
to  some  extent  at  least,  the  need  indicated.  It  is  based  in  part 
upon  a  college  course  in  state  administration  which  the  author 
has  given  for  the  last  six  years,  first  at  Princeton  University 
and  later  at  the  University  of  Illinois,  and  in  part  upon  re- 
searches undertaken  by  him  on  behalf  of  the  Efficiency  and 
Economy  Commission  of  Illinois.  No  attempt  has  been  made 
to  describe  exhaustively  all  of  the  multifarious  activities  and 

vii 


PREFACE 

functions  of  the  American  states,  for  such  a  task  would  have 
far  exceeded  the  limits  of  this  volume,  even  had  the  author 
felt  qualified  to  perform  it.  The  aim  has  been  rather  to  select 
for  description  those  services  and  functions  which  appear 
most  to  deserve  attention,  either  because  of  their  intrinsic  im- 
portance or  because  of  their  suitability  for  illustrating  the 
general  principles  of  state  administration.  In  Part  II  consid- 
erable space  has  been  devoted  to  a  description  of  the  organiza- 
tion of  state  administrative  authorities,  in  the  belief  that  a 
working  knowledge  of  this  phase  of  the  subject  is  essential  to 
the  study  of  state  functions,  described  in  Part  III.  The  author 
has  endeavored,  as  far  as  possible,  to  avoid  the  pitfall  of  mak- 
ing generalizations  on  insufficient  data.  He  has  not  deemed 
it  best,  however,  to  encumber  the  pages  of  the  book  with 
numerous  specific  references  to  all  the  particular  states  which 
may  be  included  in  a  general  statement,  because  the  book  is 
not  designed  to  form  a  reference  book  of  specific  information 
regarding  the  administrative  structure  and  activities  of  any 
particular  state,  but  rather  to  describe  the  general  tendencies 
and  principles  which  underlie  the  administrative  organization 
and  work  of  all  the  states.  He  has  endeavored  to  bear  in  mind 
that  facts  are  constantly  changing,  while  principles  remain 
relatively  fixed,  and  has  therefore  placed  the  emphasis  upon 
the  principles,  and  has  used  facts,  as  a  rule,  merely  for  pur- 
poses of  illustration. 

The  extent  of  the  author's  indebtedness  to  others  is  indi- 
cated by  the  lists  of  references  appended  to  each  chapter,  as 
well  as  by  the  footnotes.  These  lists  are  not  intended  to  be 
exhaustive,  but  to  indicate  the  most  important  or  the  most 
available  sources  for  the  further  study  of  the  various  topics 
discussed.  The  author  desires  to  make  acknowledgment  to 
Professors  J.  W.  Garner,  J.  A.  Fairlie,  M.  H.  Robinson,  W.  F. 
Dodd,  A.  C.  Han  ford  and  E.  H.  Downey  for  their  kindness  in 
permitting  the  use  of  extracts  from  their  writings  which  are 
reprinted  herein.    He  desires  also  to  express  his  gratitude  for 

viii 


PREFACE 

valuable  suggestions  and  criticisms  to  his  colleagues,  Profes- 
sors Garner,  Fairlie,  E.  B.  Greene  and  C.  H.  Johnston,  all  of 
whom  have  read  portions  of  the  manuscript  or  proof.  The 
author,  however,  is  alone  responsible  for  errors,  whether  of 
fact  or  of  judgment,  which,  on  account  of  the  multitudinous 
variations  and  constant  changes  in  the  law  and  practice  of 
state  administrative  structure  and  function,  he  cannot  hope 
wholly  to  have  escaped. 

J.  M.  Mathews. 

University  of  Illinois, 

Urhana,  Illinois. 


CONTENTS 


PART  I 
INTRODUCTION 

CHAPTER  PAGE 

I.     General  Principles 3 

Definitions.  Growth  of  state  functions.  Separa- 
tion of  governmental  powers.  Forms  of  control 
over  the  administration.  Centralization  and  local 
self-government. 


PART   II 

THE  ORGANIZATION  OF  THE  ADMINISTRATION 

II.    The  State  Governor 25 

The  colonial  governor.  The  governor  under  the 
first  state  constitutions.  Later  development  of  the 
governor's  ofifice.  Present  position  of  the  gov- 
ernor— election,  term  and  compensation. 

III.  The  Governor's  Legislative  Powers    ...      52 
His  legal  powers  in  legislation :     Over  the  organi- 
zation   and    sessions    of    the    legislature;    sending 
messages;  approval  and  veto;  power  of  subsidiary 
legislation.    His  extra-legal  powers  in  legislation. 

IV.  The  Governor's  Administrative  Powers     .        .      79 
The  execution  of  the  laws.    Power  of  appointment. 
Supervision  of  subordinate  officers.     The  removal 
power. 

V.    The  Governor's  Special  Functions      .        ,        .114 
Military    power.      External    relations.      Pardoning 
power.     Miscellaneous   functions.     The  conference 
of  governors. 

xi 


CONTENTS 

CHAPTER  PAGE 

VI.     State  Officers  and  Heads  of  Departments  .        .     134 
The  lieutenant-governor.     The  governor's  council. 
The  secretary  of  state.    The  attorney-general.    Fi- 
nancial officers.     Relation  of  state  officers  to  the 
governor. 

VII.  State  Boards  and  Commissions  ....  156 
Origin  and  growth.  Scope  and  classification.  Pow- 
ers and  limitations.  Internal  organization.  Boards 
versus  single  commissioners.  Lack  of  proper  inter- 
relation. Movement  toward  consolidation  and 
abolition. 

VIII.    The  Selection  and  Removal  of  State  Officers  .     173 
Election  and  appointment.     Prevalence  of  elective 
method.     The    short   ballot.     Impeachment.     The 
popular  recall.    Administrative  removal. 

IX.    The  State  Civil  Service 191 

Partisan  influence  on  administration.  The  spoils 
system.  Rise  of  merit  system.  State  civil  service 
laws — scope  and  content.  The  selection  of  the  com- 
mission.    Shortcomings  of  the  merit  system. 

PART  III 

THE  FUNCTIONS  OF  THE  ADMINISTRATION 

X.    Taxation  and  Finance 215 

State  indebtedness.  Colonial  tax  methods.  The 
specific  property  tax.  The  general  property  tax — 
origin,  development,  and  administration.  Equaliza- 
tion. Publication  of  assessment  lists.  The  tax  in- 
quisitor law.  Central  supervision  through  state 
tax  commissions. 

XI.  Taxation  and  Finance  (Continued)  .  .  .  250 
Taxation  of  intangible  wealth.  Taxation  of  cor- 
porations. Separation  of  sources  of  revenue.  Ap- 
portionment by  expenditure.  Classification  of  ob- 
jects of  taxation.  Inheritance  and  income  taxes. 
State  supervision  of  local  accounts.  State  account- 
ing methods.  State  expenditures.  The  state  bud- 
get. 

xii 


CONTENTS 


CHAPTER 


PAGE 


XII.  The  Administration  of  Education  .  .  .  296 
Educational  agencies.  The  school  district.  The 
township  unit  and  consolidation  of  schools.  The 
county  unit  and  county  board.  The  county  super- 
intendent. The  state  board  of  education.  The 
state  superintendent.  State  financial  aid  to  schools. 
Compulsory  attendance.  Supervision  of  private 
schools.  Regulation  and  inspection  of  school  con- 
ditions. Text-book  supply  and  uniformity.  Train- 
ing, examination,  and  certification  of  teachers. 
Higher  education.  Library  administration.  The 
National  Government  and  education. 

XIII.  Administration  of  Charities  and  Corrections  .  335 
Local  origins.  Extension  of  state  supervision.  Pri- 
vate charitable  institutions.  Establishment  of  state 
institutions.  Creation  of  state  boards.  The  group 
system.  Supervisory  boards  and  boards  of  control. 
The  dual  system.  Penal  administration.  Convict 
labor.  The  indeterminate  sentence.  The  parole  sys- 
tem.   The  probation  system. 

XIV.  Public  Health  Administration   ....    374 
Historical.     Organization  of  state  health  authori- 
ties.    State  boards  of  healMi.     The  executive  ofii- 

cer.  Other  officers  and  employees.  Divisions  and 
bureaus.  Powers  and  duties.  Methods  of  classifi- 
cation. Information  and  research.  Examining 
and  licensing  functions.  Prevention  of  disease.  Re- 
lations between  state  and  local  health  authorities. 

XV.     The  Enforcement  of  State  Law  .        .        .    401 

Multiplicity  of  laws.  Public  opinion  and  private 
interest  in  law  enactment.  Legislative  methods  af- 
fecting the  character  of  laws.  Heterogeneous  popu- 
lation and  law  enforcement.  Political  corruption. 
Machinery  of  law  enforcement.  Private  initiative. 
Loose  organization  of  law-enforcing  authorities. 
Administrative  suspension  of  law.  Home  rule  and 
state  law  enforcement.  Local  responsibility  for 
law  violations. 

XVI.    The  Enforcement  of  State  Law  (Continued)    .    430 

Problem   of   state   law   enforcement   in   localities. 

xiii 


CONTENTS 

CHAPTER  PAGE 

Central  supervision  over  local  law-enforcing  offi- 
cers. The  governor  and  law  enforcement.  En- 
forcement through  state  militia.  The  state  con- 
stabulary. State  control  of  municipal  police.  En- 
forcement through  state  boards  and  commissions. 
Influence  of  the  National  Government  upon  state 
law  enforcement. 

XVII.    The  Administration  of  Justice    ....    463 
Inefficiency  of  judicial   action.     Technicalities   of 
judicial  procedure.     The  jury  system.     The  Iowa 
injunction  and  abatement  law.  Judicial  interference 
in  administration. 

XVIII.     Newer  Functions 474 

The  control  of  corporations.  Public  service  com- 
missions. Labor  legislation.  The  promotion  of 
agriculture.    The  promotion  of  good  roads. 


PART  IV 
CONCLUSION 

XIX.  The  Reorganization  of  State  Administration  .  499 
Present  complicated  and  unsystematic  organiza- 
tion. Work  of  state  efficiency  and  economy  com- 
missions. Constitutional  change  and  the  short  bal- 
lot. Reduction  of  departments  and  regrouping  of 
administrative  services.  Analogy  of  industrial  and 
municipal  organizations.  Executive  control  of  ad- 
ministrative organization.  Readjustment  of  the  re- 
lation between  executive  and  legislatuie. 
Index 517 


PART  I 
INTRODUCTION 


CHAPTER   I 

GENERAL  PRINCIPLES 

The  work  of  government  may  be  broadly  divided  into  two 
primary  parts,  that  which  is  concerned  with  the  formulation 
of  public  policy,  and  that  which  has  to  do  with  the  execution 
of  such  policy.  The  first  we  call  legislation  and  the  second 
administration.^  The  term  "administration"  may  be  used  as 
referring  either  to  the  body  of  officials  whose  characteristic 
function  is  the  execution  of  public  policy,  or  to  the  exercise 
by  public  officials  of  their  powers  and  duties  in  carrying  out 
actual  governmental  operations.  In  the  former  sense  adminis- 
tration denotes  the  structure  or  organization  of  the  execu- 
tive and  administrative  authorities,  while  in  the  latter  sense 
it  denotes  the  function  of  executing  public  policy.  Administra- 
tive law  consists  of  the  body  of  rules  which  determine  the 
organization  of  the  executive  and  administrative  authorities 
and  the  scope  and  limits  of  their  powers,  duties  and  func- 
tions.^ Administrative  law  and  constitutional  law  may  some- 
times  overlap,    for   the   latter   is   peculiarly    concerned   with 

*  M.  Block  defines  administration  as  "the  group  of  public  services 
intended,  by  the  execution  of  the  laws,  to  provide  for  the  needs  or 
collective  interests  of  the  citizens ;  including  also  the  attributions  of 
these  services,  their  powers  and  mode  of  action."  Dictionnaire  de 
L' Administration  Francaise,  i,  13.  M.  Cooreman,  in  his  opening  ad- 
dress before  the  First  International  Congress  on  the  Administrative 
Sciences,  defined  administration  as  meaning  "three  things  closely  con- 
nected yet  distinct ;  the  totality  of  the  powers  and  duties  of  the  execu- 
tive authority ;  the  exercise  of  these  powers  and  duties ;  and  the  body 
of  officials  or  administrative  personnel."  Rapports  et  Comptes  Rendus 
du  Congrcs  International  dcs  Sciences  Administratives,  v,  Part  II,  p.  6. 

'  Cf.  Freund,  Cases  on  Administrative  Law,  p.  i ;  Goodnow,  Princi- 
ples of  the  Administrative  Law  of  the  U.  S.,  p.  I7- 

3 


AMERICAN  STATE  ADMINISTRATION 

the  structure  or  organization  of  governmental  authorities.  In 
the  study  of  administration,  however,  it  is  almost  neces- 
sary to  include  some  consideration  of  the  organization  of  the 
administrative  and  executive  authorities.  This  need  arises 
not  merely  from  the  fact  that  constitutions  seldom  provide 
fully  for  the  organization  of  such  authorities,  but  more 
especially  from  the  fact  that  questions  of  organization  and  of 
function  are  so  intimately  related  that  it  is  desirable  to  con- 
sider each  in  order  the  better  to  understand  the  other.  The 
line  of  demarkation  between  organization  and  administration 
is  not  clearly  drawn.  The  character  and  extent  of  the  work 
to  be  done  largely  determines  the  type  of  the  organization. 
Furthermore,  the  character  of  the  organization  affects  the 
action  of  the  administration,  just  as  the  efficiency  of  a  machine 
in  doing  its  work  is  affected  by  the  adaptability  of  its  con- 
struction for  the  purpose.  In  this  work  no  attempt  is  made 
to  keep  these  two  sets  of  questions  strictly  separate,  but  in 
Part  II  we  shall  be  primarily  concerned  with  matters  of 
organization,  while  in  Part  III  we  shall  devote  our  attention 
mainly  to  a  description  of  functions. 

Administration,  whether  viewed  from  the  standpoint  of 
organization  or  from  that  of  function,  is  as  old  as  govern- 
ment itself.  In  early  or  primitive  governments,  however,  it 
is  found  naturally  in  a  very  rudimentary  form.  Under  such 
conditions  there  exists  little  or  no  differentiation  either  of 
structure  or  of  function.  The  few  and  meager  functions 
which  the  government  undertakes  to  perform  are  concen- 
trated in  the  hands  of  a  single  person,  or  a  small  group  of 
authorities.  In  fact,  it  is  only  at  a  relatively  late  period  in 
the  history  of  political  institutions  that  governments  assume 
the  performance  of  functions  other  than  those  necessary  for 
the  bare  maintenance  of  national  life.  As  the  result,  how- 
ever, of  the  impact  of  political,  economic,  and  social  forces 
upon  the  governmental  system,  the  administration  reacts  to  the 
stimulus  of  changing  conditions  and  becomes  more  highly  dif- 

4 


GENERAL  PRINCIPLES 

ferentiated  in  structural  partition  and  functional  development. 

The  development  of  the  administrative  system  has  been 
retarded,  however,  as  the  result  of  the  prevalence  at  different 
times  of  certain  political  theories  or  doctrines.  During  the 
sixteenth  and  seventeenth  centuries,  whatever  influence  the 
contract  theory  of  the  origin  of  the  state  exercised  upon  the 
scope  of  state  activity  in  Europe  tended  towards  the  arrest 
of  functional  development.  The  doctrines  of  laisses  faire  and 
of  individualism,  which,  at  a  later  period,  acquired  great  cur- 
rency, particularly  in  Anglo-Saxon  countries,  tended  in  the 
same  direction.  By  those  who  held  these  doctrines,  any 
activity  on  the  part  of  the  government  beyond  that  which 
was  absolutely  necessary  was  regarded  with  aversion  as  tend- 
ing to  stifle  private  initiative.  The  laisses  faire  doctrine  was 
a  natural  protest  and  reaction  from  the  excessive  extension 
of  executive  power  in  monarchical  governments.  The  govern- 
ment was  considered  as  a  tyrant  and  even  the  principal  en- 
emy of  the  welfare  of  the  people.  It  was  a  common  idea 
even  as  late  as  the  middle  of  the  nineteenth  century  that 
"all  government  is  a  satire  on  human  nature  and  is  made 
necessary  by  the  vices  and  ambitions  of  men."  ^  The  increas- 
ing degree  of  democratic  control  over  the  government,  how- 
ever, has  brought  about  a  change  in  the  attitude  of  the  peo- 
ple towards  the  government,  so  that  they  no  longer  regard 
it  as  a  tyrant  or  necessary  evil,  but  as  their  natural  protector 
against  the  encroachments  of  aggregations  of  capital  upon 
private  rights.*  Hence,  the  activities  and  increasing  functions 
of  government  now  arouse  little  alarm. 

At  the  present  time,  the  force  of  circumstances  and  the 
changes  in  those  varied  and  manifold  conditions  which  go 
to  make  up  the  environment  of  the  government  have  loosened 

*  Debates  and  Proceedings  of  the  Maryland  Constitutional  Conven- 
tion of  1831,  i,  501. 

*  CL   Wambaugh,   "The   Scope   of   Government,"  Atlantic  Monthly, 
Jan.,  1898. 

5 


AMERICAN  STATE  ADMINISTRATION 

the  hold  of  these  restrictive  doctrines  upon  the  pubHc  mind 
and  poHcy.  The  increasing  complexity  of  modern  social 
and  industrial  conditions,  combined  with  the  awakening  of 
the  sense  of  social  solidarity  and  the  coming  into  existence  of 
new  and  unplumbed  phenomena,  necessitates  more  and  more 
the  interference  of  the  state  for  the  purpose  of  regulating 
and  controlling  the  operations  of  business  and  the  processes  of 
life.  New  functions  are  undertaken  by  the  state  as  the  result 
of  an  effort,  partly  instinctive,  partly  conscious,  to  adapt  itself 
to  changes  in  this  environment.  The  functions  now  under- 
taken by  the  modern  state  are  usually  classified  into  five 
groups,  viz. :  those  relating  to  foreign  affairs,  military  af- 
fairs, the  judicial  system,  financial  affairs,  and  internal  affairs. 
The  group  of  functions  relating  to  internal  affairs  may  be 
subdivided  into  two  classes,  repressive  and  developmental. 
Police  activity  in  limiting  the  freedom  of  action  of  indi- 
viduals is  repressive  in  character,  while  the  maintenance  of  a 
system  of  public  instruction  is  an  example  of  a  developmental 
function.^ 

The  development  of  new  functions  of  government  and  the 
expansion  of  old  ones  has  been  accompanied  by  a  simultane- 
ous process  of  partition  in  the  structure  of  the  administra- 
tive organization.  New  organs  have  been  formed  which 
assumed  new  functions  or  exercised  old  ones  transferred  to 
them  from  existing  organs.  Thus,  in  England,  the  functions 
exercised  by  Parliament  and  the  Courts  were  originally  pos- 
sessed by  a  single  authority,  but  gradually  became  separated 
from  the  main  stem,  the  Crown.  Montesquieu,  writing  in 
the  eighteenth  century,  concluded  that,  since  there  were  in 
England  at  that  time  three  more  or  less  separate  departments 

"  This  five-fold  classification,  it  will  be  noticed,  is  based  upon  a  dif- 
ferent principle  from  that  of  the  more  primary  and  fundamental  clas- 
sification already  given,  into  legislation  and  administration.  Each  of 
the  five  classes  of  functions  mentioned  involves  both  the  formulation 
and  the  execution  of  public  policies. 

6 


GENERAL  TRINCIPLES 

of  government,  therefore  the  powers  of  government  are 
three-fold,  viz. :  legislative,  executive,  and  judicial.^  The  in- 
ference which  he  drew  from  his  study  of  the  English  Govern- 
ment was  that  the  proper  organization  of  government  requires 
that  each  of  these  powers  should  be  assigned  to  its  appropri- 
ate department,  and  that  no  department  should  exercise  any 
kind  of  power  other  than  that  assigned  to  it.  This  famous 
doctrine  of  the  separation  of  powers  was  accepted  as  a  fun- 
damental maxim  of  government  by  the  framers  of  the  first 
American  Constitutions,  who  embodied  it  in  these  instru- 
ments, and  it  thus  became  a  part  of  American  public  law 
in  both  state  and  nation.  It  has  not  been  found  practicable, 
however,  to  apply  the  doctrine  strictly  and,  by  constitutional 
provision  and  judicial  construction,  numerous  specific  excep- 
tions to  it  have  been  made.  The  difficulty  in  applying  the 
doctrine  arises  from  certain  fundamental  misconceptions  un- 
derlying it. 

In  the  first  place,  Montesquieu  fell  into  the  error  of  con- 
fusing powers  or  functions  of  government  with  sets  of  au- 
thorities established  to  exercise  them.  This  error  led  him  to 
the  untenable  assumption  that  the  emergence  of  three  more 
or  less  independent  departments  of  government  necessarily 
indicated  the  existence  of  the  same  number  of  fundamental 
and  essentially  distinct  powers  or  functions  of  government. 
As  already  pointed  out,  there  are  but  two  primary  and  funda- 
mental powers  or  functions  of  government,  viz. :  the  formu- 
lation and  the  execution  of  policies.  There  is  no  definite  limit, 
however,  to  the  number  of  more  or  less  independent  depart- 
ments or  sets  of  authorities  that  may  exist  in  a  given  govern- 
ment. There  can  scarcely  be,  in  the  nature  of  things,  any 
exclusive  assignment  of  one  of  the  two  primary  functions 
of  government  to  a  single  department,  but  the  work  of  each 
department  involves  the  exercise  of  a  combination  of  such 
functions.      The   executive    department   both    influences    the 

*  L'Esprit  des  Lois,  Bk.  XI,  Ch.  IV. 

7 


AMERICAN  STATE  ADMINISTRATION 

formulation  of  public  policies  and  is  intrusted  with  their  exe- 
cution, while  the  judicial  department  both  legislates  and  ad- 
ministers. Usually,  however,  one  of  the  two  primary  functions 
will  be  found  predominant  in  the  work  of  a  given  department. 
Thus,  the  work  of  the  legislative  department  consists  mainly 
in  the  formulation  of  public  policies,  while  that  of  the  execu- 
tive department  usually  consists  mainly  in  the  execution  of 
such  policies. 

In  the  second  place,  Montesquieu,  in  evolving  his  doctrine 
of  the  separation  of  powers,  failed  fully  to  appreciate  the 
necessity  for  the  interdependence  of  the  departments  of  gov- 
ernment. Just  as,  in  the  various  forms  of  organic  life,  the 
process  of  differentiation  of  structure  and  function  is  ac- 
companied by  the  development  of  correlative  means  of  in- 
tegration, so,  in  the  field  of  political  life,  the  division  of  the 
powers  of  government  among  more  or  less  separate  depart- 
ments is  accompanied  by  the  creation  of  certain  ligaments 
or  connective  tissue  binding  them  more  or  less  closely  together. 
Without  such  means  of  integration,  the  government  would 
consist  of  a  series  of  disjointed  departments  and  authori- 
ties, among  which  harmonious  action  would  frequently  be 
impossible.  This  necessary  integration  of  the  departments  of 
government  is  secured  to  some  extent  through  the  common 
control  exercised  by  the  sovereign  power  in  the  state  over 
the  organization  of  the  various  departments,  but  more  espe- 
cially through  the  creation  of  avenues  of  control  exercised 
by  one  department  or  authority  over  another.  Where  the 
legal  sovereign  is  quiescent,  or  the  organization  of  the  gov- 
ernment such  as  to  render  the  control  of  the  political  sovereign 
ineffective,  dependence  for  the  necessary  means  of  integra- 
tion must,  in  the  first  instance,  be  had  upon  the  reciprocal 
control  of  the  various  sets  of  authorities  over  each  other. 
In  case,  however,  the  laws  regulating  the  organization  and 
relations  of  the  different  departments  do  not  sufficiently  pro- 
vide for  such  avenues  of  control,  the  necessary  control  may 

8 


GENERAL  PRINCIPLES 

grow  up  in  an  extra-legal  fashion  outside  the  governmental 
system.  Thus,  in  the  United  States,  the  political  party  has, 
as  one  of  its  most  important  functions,  the  at  least  partial 
integration  of  the  more  or  less  separate  departments  and 
officers  of  governments  In  addition  to  the  extra-legal  control 
of  the  political  party,  avenues  of  interdepartmental  control 
are  also  provided. 

The  different  forms  of  control  over  the  administration 
which  have  been  evolved  may  be  classed  as  popular,  political, 
legislative,  judicial  and  administrative.  Some  of  these  forms 
of  control  may  overlap  or  merge  into  each  other,  while  some 
may  exist  separately  and  simultaneously.  Popular  and  legis- 
lative control  are  forms  of  political  control,  but  political  con- 
trol over  the  administration  may  also  be  exercised  extra- 
legally  through  the  political  party.  The  control  of  the  political 
party  over  the  administration  is  secured  through  the  successful 
eft'orts  of  a  particular  party  organization  in  controlling  the 
election  or  appointment  of  officers  to  executive  and  adminis- 
trative positions.  Such  control  is  legitimate  in  so  far  as  it 
tends  to  harmonize  the  activities  of  such  officers  with  each 
other  and  with  the  policy-determining  organs  of  the  gov- 
ernment for  the  more  effective  execution  of  the  popular  will, 
but  it  may  have  an  injurious  effect  upon  administrative 
efficiency  if  utilized  for  the  perpetuation  of  the  existence  of 
the  party  organization.® 

Popular  control  over  the  administration  is  secured  to  a  lim- 
ited  extent  through  the  rather  vague  and  indefinite  influence  -' 
of  public  opinion  over  administrative  action.  Thus,  where 
public  opinion  in  a  certain  locality  of  the  state  is  favorable 
or  opposed  to  the  enforcement  of  a  given  state  law,  the  ac- 
tivity or  non-activity  of  the  law-enforcing  officers  is  apt  to 
be  correspondingly  influenced.  Such  extra-legal  influence  of 
public  opinion  is  capable  of  exertion,  however,  through  the 

"^  Cf.  Ford,  Rise  and  Growth  of  American  Politics,  p.  215. 
■  Cf.  Goodnow,  Politics  and  Administration,  p.  27- 

9 


AMERICAN  STATE  ADMINISTRATION 

possibility  of  the  exercise  by  the  people  of  legal  and  more 
tangible  means  of  control.  The  legal  methods  of  popular 
control  over  the  administration  consist  in  the  adoption  of 
constitutions  and  amendments  thereto,  the  initiative  and  refer- 
endum in  ordinary  legislation,  and  in  the  election  to,  and 
recall  from,  public  office,®  The  organization  of  the  executive 
department  and  the  competence  of  the  executive  and  adminis- 
trative authorities  are  to  some  extent  determined  by  most 
of  the  constitutions.  In  no  case,  however,  are  these  matters 
fully  provided  for  in  the  constitution.  Even  if  they  were 
so  provided  for  at  any  given  time,  the  constant  growth  of 
administrative  functions  would  cause  such  a  continual  need 
of  changes  and  additions  in  the  administrative  organization 
that  constitutional  revision  could  scarcely  be  expected  to  keep 
pace  with  the  new  developments.  Power  to  supplement  or 
extend  the  constitutional  provisions  regarding  the  organization 
and  competence  of  the  executive  and  administrative  authori- 
ties must  therefore  be  vested  either  in  the  legislature  or  in 
the  higher  constitutional  officers  of  the  executive  department. 
In  the  American  states  the  former  alternative  is  adopted. 
Upon  this  point  the  constitutions  are  usually  silent,  but  the 
lodgment  of  this  power  in  the  legislature  results  from  the 
generally  recognized  principle  that  the  legislature  is  a  body  of 
residuary  powers,  while  the  executive  department  is  largely 
a  body  of  delegated  powers.^" 

Of  the  legal  forms  of  control  over  the  administration  in 
the  American  states,  that  of  the  legislature  is  one  of  the 
most  extensive  and  pervasive.  A  large  part  of  the  work  of 
the  legislature  consists  in  the  passage  of  laws  creating  new 
organs  and  functions  in  the  executive  department,  or  re- 
arranging those  already  in  existence,  and  giving  detailed  di- 
rections as  to  the  exercise  of  their  powers  and  duties  by 
the   designated   organs.      Thus,   the    legislature   may   require 

*  On  the  recall,  see  below  Ch.  VIII. 
"Field  vs.  People,  3  111.,  79. 

10 


GENERAL  PRINCIPLES 

that  the  governor  shall  reside  at  the  seat  of  government, 
and,  in  general,  that  he  shall  perform  duties  other  than  those 
specified  in  the  constitution  not  incompatible  with  his  dignity 
and  constitutional  functions. ^^  The  legislature  may  intrust 
the  performance  of  many  legal  duties  either  to  the  governor 
or,  at  their  option,  to  any  other  executive  or  administrative 
officer.^^  The  secretary  of  state  of  Indiana  was  directed  by 
joint  resolution  of  the  legislature  to  publish  certain  laws  as 
soon  as  convenient,^^  and  it  was  held  by  the  Supreme  Court 
of  the  state  that  that  body  had  the  right  to  direct  him  in  the 
discharge  of  his  official  duties.^*  Again,  it  is  within  the 
power  of  the  legislature  at  any  time  to  extend  or  abridge  the 
powers  or  duties  of  the  attorney-general.^^  In  South  Dakota 
the  legislature  has  provided  by  law  that  the  state  treasurer 
shall  make  to  the  governor  a  monthly  statement  of  the  exact 
condition  of  the  public  funds  in  his  possession.^^  In  these 
various  ways  the  legislature  enters  intimately  into  the  busi- 
ness of  regulating  the  administration. 

Furthermore,  the  legislature  by  joint  ballot  may  in  some 
states  appoint  officers  of  the  executive  department,  while  in 
most  states  the  upper  branch  of  the  law-making  body  has 
the  power  of  confirming  the  appointments  of  the  governor. 
The  legislature  may  also  often  prescribe  the  qualifications  for 
holding  executive  or  administrative  offices,  may  determine  the 
length  of  the  term,  and  may  remove  the  incumbent  from 
office  before  the  expiration  of  the  term  by  impeachment,  by 
the  abolition  of  the  office,  or  in  some  cases  by  merely  de- 
claring the  office  vacant.  Thus,  the  legislature  of  Michigan, 
in  providing  for  the  consolidation  of  the  several  state  institu- 

"  Shields  vs.  Bennett,  8  W.  Va.,  74. 
"  Slack  vs.  Jacob,  8  W.  Va.,  612. 
"Indiana  Acts  of  1852,  p.  178. 

"State  vs.   Bailey,   16  Ind.,  46;  see  also   Pinckney  vs.   Henegan,  2 
Strob.  (S.  0,  250. 
"  People  vs.  Santa  Clara  Lumber  Co.,  106  N.Y.S.,  624. 
"  South  Dakota  Compiled  Statutes,  1913,  p.  88. 

II 


AMERICAN  STATE  ADMINISTRATION 

tions,  abolished  their  boards  of  managers  and  annulled  all 
appointments  of  officers  at  said  institutions."  Through  the 
control  thus  exercised  over  the  personnel  of  the  administra- 
tion, the  legislature  is  enabled  to  exert  an  important  influence 
over  the  carrying  on  of  the  administrative  services.  Of 
even  greater  importance,  however,  in  this  respect,  is  the  legisla- 
tive control  of  the  public  purse.  New  organs  cannot  be  cre- 
ated, nor  new  functions  undertaken,  nor  can  the  old  ones 
be  maintained  without  provision  being  made  by  the  legisla- 
ture for  the  necessary  financial  support.  Through  the  medium 
of  detailed  appropriations,  the  legislature  is  able  to  exert  an 
influence  which  permeates  every  branch  of  the  administrative 
system.^®  It  thus  appears  that,  in  the  several  respects  men- 
tioned, viz. :  in  providing  for  the  organization  and  competence 
of  the  executive  and  administrative  authorities,  in  creating  and 
terminating  membership  in  the  administration,  and  in  making 
detailed  appropriations  for  the  carrying  on  of  the  admin- 
istrative services,  the  work  of  the  legislature  is  not  properly 
legislation  but  administration.  "The  legislature  thus  becomes 
in  a  sense  the  central  administrative  authority  of  the  state."  ^^ 
The  control  exercised  by  the  legislature  over  the  admin- 
istration is  to  a  certain  extent  legitimate  and  even  necessary 
in  order  to  secure  the  requisite  harmony  of  action  between 
these  departments  of  the  government.  The  representatives  of 
the  people  in  the  law-making  body  should  be  in  a  position  to 
criticize  the  administration  and  to  prevent  or  remedy  any 
abuses  which  may  grow  up  in  the  conduct  of  the  administra- 
tion. If,  however,  legislative  control  is  extended  farther 
than  necessary  for  the  accomplishment  of  these  objects,  it 
may  exert  an  injurious  influence  both  upon  the   legislature 

"Michigan  Acts  of  1891,  No.  140;  Attorney-General  vs.  Jochim,  99 
Mich.,  358. 

"  See,  for  example,  Illinois  Session  Laws,  1915,  pp.  12  flf. 

"  Freund,  "American  Administrative  Law,"  Political  Science  Quar- 
terly, ix,  413. 

12 


GENERAL  PRINCIPLES 

and  upon  the  administration.  Control  by  the  legislature, 
though  legitimate  within  limits,  should  not  be  extended  so 
far  as  almost  completely  to  destroy  the  independent  action 
of  the  administration,  so  that  the  latter  becomes  a  mere  tool 
in  the  legislative  hand.  Legislative  control  is  political  con- 
trol, and  therefore  should  be  confined  to  the  general  fea- 
tures of  administration.  Statutes  should  not  contain  elaborate 
and  detailed  administrative  provisions,  but  such  details  should 
rather  be  left  to  the  discretion  of  the  executive.  The  in- 
jection of  political  considerations  in  the  administration  weak- 
ens the  executive  authority  and  renders  the  administration 
inefficient.  The  injurious  effect  of  political  considerations 
is  especially  marked  when  it  touches  the  personnel  of  the 
administration.  As  Woodrow  Wilson  pointed  out  many  years 
ago,  "Politics  sets  the  tasks  for  administration;  but  it  should 
not  be  suffered  to  manipulate  its  offices."  ^^  The  legislature's 
power  of  patronage,  which  it  formerly  enjoyed  to  a  greater 
extent  than  at  present,  has  been  declared  to  be  "the  one  power 
which  has  gone  far  to  discredit  legislative  bodies  and  has 
been  the  chief  means  of  producing  so  much  hasty  and  ill- 
considered  legislation."  '^ 

Although  legislative  control  over  the  administration  in  the 
American  states  has  been  extended  to  considerable  lengths, 
it  cannot  in  the  nature  of  things  entirely  displace  administra- 
tive control.  It  is  impossible  for  the  legislature  to  foresee 
and  to  provide  in  detail  for  all  emergencies  that  may  arise 
in  the  course  of  administrative  action.  Moreover,  the  facts 
and  processes  of  life  in  the  twentieth  century  are  frequently 
so  complex  and  technical  that  the  legislature  is  not  well  fitted 
to  deal  with  them.  Hence,  a  certain  amount  of  discretion  must 
be  allowed  to  the  administrative  authorities  in  dealing  with 
conditions  as  they  arise.     In  such  matters,  for  example,  as 

*"  "The  Study  of  Administration,"  Political  Science  Quarterly,  ii,  210. 
"  Debates  and  Proceedings  of  the  Ohio  Constitutional  Convention  of 
1850,  p.  90. 

13 


AMERICAN  STATE  ADMINISTRATION 

the  regulation  of  railroads  and  of  the  working  conditions 
of  laborers  in  factories,  purely  legislative  control  has  been 
found  to  be  impracticable  in  many  respects  and  considerable 
discretionary  power,  therefore,  has  been  lodged  in  the  hands 
of  administrative  officers  and  departments.  This  growth  of 
discretion  on  the  part  of  administrative  officials  has,  to  some 
extent,  released  them  from  the  control  not  only  of  the  legis- 
lature but  also  of  the  judiciary.^^ 

Legislative  control  is,  from  its  very  nature,  subject  to  an- 
other serious  limitation.  The  legislature  may  enact  regula- 
tions for  the  guidance  of  the  conduct  of  the  administration, 
but  such  regulations  do  not  necessarily  result  in  control 
over  the  administration  unless  some  means  are  provided  for 
seeing  that  the  regulations  are  carried  out.  The  legislature, 
partly  on  account  of  the  character  of  its  organization  and 
partly  on  account  of  the  fact  that  it  is  ordinarily  in  session 
only  a  comparatively  small  portion  of  the  time,  is  not  well 
adapted  directly  to  oversee  the  carrying  out  of  the  regulations 
which  it  may  enact.  The  law-making  body,  it  is  true,  usually 
has  standing  committees  to  which  is  assigned  some  degree 
of  oversight  of  the  executive  departments.  Special  committees 
of  the  legislature  may  also  be  appointed  from  time  to  time 
to  investigate  the  various  branches  of  the  administration, 
and  to  bring  to  light  any  abuses  in  the  administration  or  any 
derelictions  of  administrative  officials.  Such  committees  are 
sometimes  vested  with  the  power  to  subpena  witnesses  and 
to  punish  for  contempt.  The  control  exercised  by  the  legis- 
lature through  such  committees,  however,  is,  as  a  rule,  spe- 
cial and  temporary,  rather  than  regular  and  permanent. 

The  most  usual  means  whereby  the  statutes  enacted  by  the 
legislature  for  the  control  of  the  administration  are  carried 

"  Cf.  Goodnow,  "The  Growth  of  Executive  Discretion,"  Proceedings 
of  the  American  Political  Science  Association,  ii,  pp.  29-44;  Inaugural 
Address  and  First  Message  of  Governor  Cox  of  Ohio,  1913,  p.  19; 
"Report  of  New  York  Factory  Commission,  1912,"  pp.  803-5. 

14 


GENERAL  PRINCIPLES 

into  effect  is  through  the  action  of  the  courts.  Through 
its  power  of  construing  and  enforcing  the  acts  of  the  legis- 
lature relating  to  the  administration,  the  judiciary  exercises, 
both  in  civil  and  in  criminal  cases,  a  very  far-reaching  control 
over  the  competence  of  administrative  officials.  It  is  to  be 
noted,  however,  that  in  so  far  as  the  jury  system  is  used, 
an  element  of  popular  control  is  injected  into  the  jurisdiction 
of  the  courts.  The  power  to  delimit  the  scope  of  action  of 
administrative  officials  is  also  possessed  by  quasi-judicial  tri- 
bunals, such  as  boards  of  review  in  tax  cases.  Such  tribunals, 
however,  may  be  considered  as  primarily  administrative  bodies 
of  a  special  class. 

A  further  control  of  the  judiciary  over  the  administra- 
tion arises  from  the  power  of  the  courts  to  issue  extraordi- 
nary legal  and  equitable  remedies,  such  as  the  mandamus,  the 
injunction,  and  the  quo  zvarranto.  These  writs  are  issued,  as 
a  rule,  only  in  the  discretion  of  the  courts;  that  is,  not  as  a 
matter  of  course,  but  only  when  probable  cause  is  shown. 
They  are  designed  primarily  to  compel  the  performance  or 
non-performance  on  the  part  of  administrative  officials  of 
certain  acts  required  or  prohibited  by  law,  rather  than  the 
imposition  of  damages  or  penalties  for  the  violation  of  law. 
They  are  thus  essentially  anticipatory  rather  than  retrospec- 
tive in  character.  It  is  to  be  noted,  however,  that  the  writ 
of  mandamus  will  not  issue  to  compel  officers  of  the  adminis- 
tration to  perform  acts  of  a  political  nature  or  which  involve 
the  exercise  of  official  discretion.  This  is  particularly  true 
in  reference  to  the  governor.  Many  courts  hold  that,  in 
order  to  avoid  conflict  between  the  judicial  and  executive  de- 
partments, the  writ  of  mandamus  will  not  issue  to  compel  the 
governor  to  perform  even  a  ministerial  act  required  of  him 
by  law.'^ 

**  See,  for  example,  People  vs.  Bissell,  19  111.  229;  State  vs.  Governor, 
25  N.  J.  L.  331;  Rice  vs.  The  Governor,  207  Mass.,  577;  People  vs. 
Board  of  State  Auditors,  42  Mich.,  422;  Lamar  vs.  Croft,  53  S.  E.  540; 

15 


AMERICAN  STATE  ADMINISTRATION 

The  courts  sometimes  assume  the  immediate  direction  of 
administrative  matters,  as,  for  example,  in  bankruptcy  pro- 
ceedings or  in  winding  up  the  affairs  of  a  bank.  In  cases 
of  this  kind  the  lack  of  suitability  of  the  courts  for  such 
work  becomes  especially  apparent.  Administrative  action  in 
such  cases  would  undoubtedly,  as  a  rule,  be  more  efficient  than 
judicial.  Likewise,  administrative  control  over  the  perform- 
ance of  administrative  work  would  be  more  conducive  to 
efficiency  of  action  than  judicial  control.  The  latter  method 
of  control  aims  primarily  at  the  protection  of  private  rights 
against  encroachment  on  the  part  of  administrative  officials, 
while  the  former  is  more  concerned  with  the  promotion  of 
the  social  welfare  through  the  increased  efficiency  of  the 
administration.  If  efficiency  of  administrative  action  is  adopted 
as  the  primary  object  to  be  secured,  then  it  must  be  admitted 
that  administrative  control  over  the  administration  is  more 
effective  for  this  purpose  than  either  judicial  or  legislative 
control. 

Administrative  control  over  the  administration  has  been 
a  slow  growth  in  the  American  states,  and  is  even  yet  in  a 
rudimentary  stage  of  development.  Such  a  method  of  con- 
trol, if  fully  developed,  would  require  that  the  administra- 
tion be  organized  in  hierarchical  form  with  a  definite  head 
to  whom  the  other  administrative  officials  should  be  sub- 
ordinate, not  merely  in  name  or  theory,  but  in  reality.  This 
graduated  subordination  would  be  secured  in  part  through 
the  power  of  each  superior  officer  to  select  his  subordinates. 
Inasmuch,  however,  as  appointment  in  itself  is  an  imperfect 
form  of  administrative  control,  there  should  be  vested  in  the 
superior  officer  the  power  of  removal  and,  occasionally,  the 
power  of  discipline.  Such  an  administrative  system  is  that 
which  has  sometimes  been  described  as  "a  government  of 
men  and  not  of  laws,"  for  the  subordinate  officers  would  be 

Rice  vs.   Austin,   19  Minn.,   103;   but  compare  Elliott  vs.   Pardee,   149 
Calif.,  516.     On  the  whole  matter,  see  Michigan  Law  Review,  iii,  631. 

16 


GENERAL  PRINCIPLES 

directed  in  the  performance  of  their  detailed  duties,  not  by 
the  laws  enacted  by  the  legislature,  but  by  the  orders  of 
their  superior  officers.  This  system  would  not  necessarily  do 
away  with  popular  control,  for  the  head  of  the  administration 
would  still  be  elected  by  popular  vote  and  might  also  be  sub- 
ject to  the  popular  recall.  It  would  merely  relieve  the  voters 
from  the  need  for  attempting  to  exercise  what  is  in  reality 
an  administrative  power,  viz.,  the  election  of  a  large  number 
of  subordinate,  non-policy-determining  officials.  The  release 
from  the  need  of  performing  this  function  would  probably 
increase  the  degree  of  control  exercised  by  the  people  over 
the  administration.^* 

Such  considerations,  however,  have  had  little  influence  in 
determining  the  actual  character  of  the  administrative  or- 
ganization in  the  American  states.  The  hierarchical  method 
of  organization  was  considered  as  incompatible  with  our  demo- 
cratic institutions  and  as  savoring  too  much  of  European 
monarchical  systems,  from  which  we  desired  to  escape.  Our 
democratic  institutions  had  been  set  up  as  a  result  of  a  re- 
action from  the  excessive  growth  and  domineering  character 
of  executive  authority.  This  reaction  was  accompanied  by 
the  feeling  that  the  methods  and  forms  which  had  made  the 
executive  authority  strong  and  efficient  should  be  strictly 
avoided.  This  feeling  is  shown  in  the  provision  of  the  Massa- 
chusetts bill  of  rights  of  1780  that  "this  government  shall  be 
a  government  of  laws  and  not  of  men."  ^^  The  same  idea 
was  expressed  by  Mr.  Simmons  in  the  New  York  Constitu- 
tional Convention  of  1846.  He  "wanted  to  avoid  by  any  pos- 
sible implication  that  by  virtue  of  this  executive  power  being 
vested  in  the  governor,  all  the  subordinates  were  to  act  as 

"  Cf.  Ford:  "Politics  and  Administration,"  Annals  of  the  American 
Academy  of  Political  and  Social  Science,  xvi,  184-187,  and  see  Ch. 
VIII    below. 

"  Thorpe,  Charters,  Constitutions  and  Organic  Laws,  p.  1893.  On 
the  distinction  between  a  government  of  laws  and  one  of  men,  see 
Aristotle,  Politics,  Bk.  Ill,  Ch.  16. 

17 


AMERICAN  STATE  ADMINISTRATION 

he  directed  and  not  by  law."  ^^  The  king  in  monarchical 
countries  had  been  able  to  direct  the  administrative  officers  in 
individual  instances,  but  the  people  as  a  mass,  it  was  felt, 
could  not  do  this.  Therefore  their  control  over  the  adminis- 
trative officers  must  be  exercised  largely  through  elections  and 
through  the  adoption  of  organic  laws  and  the  passage  by 
their  representatives  of  statutes  to  which  alone  such  admin- 
istrative officers  should  be  accountable.  Thus,  as  Woodrow 
Wilson  puts  it,  "The  appointment  of  officials  was  discredited 
among  us;  election  everywhere  took  its  place.  We  made  no 
hierarchy  of  officials.  We  made  laws — laws  for  the  select- 
men, laws  for  the  sheriff,  laws  for  the  county  commissioners, 
laws  for  the  district  attorney,  laws  for  each  official  from  the 
bailiff  to  governor — and  bade  the  courts  see  to  their  en- 
forcement; but  we  did  not  subordinate  one  official  to  an- 
other. No  man  was  commanded  from  the  capital  as  if  he  were 
the  servant  of  officials  rather  than  of  the  people.  Authority 
was  put  into  commission  and  distributed  piece-meal;  nowhere 
gathered  or  organized  into  a  single  commanding  force.  Over- 
sight and  concentration  were  omitted  from  the  system.  .  .  . 
We  printed  the  SELF  large  and  the  government  small  in 
almost  every  administrative  arrangement  we  made."  " 

The  Anglo-Saxon  principle  of  local  self-government,  made 
possible  in  England  on  account  of  her  insular  position  and 
subsequently  transplanted  to  our  soil,  has  resulted  in  the 
largely  decentralized  type  of  administration  in  the  American 
states.  The  doctrine  and  practice  of  legislative  control  and 
interference  in  administrative  matters  has  tended  to  deprive 
the  administration  in  the  states  of  that  independence  from 
political  control  which  is  necessary  to  efficient  action.  Thus, 
the  administrative  system  of  the  states  is  ground  between  the 
upper    and    nether    millstones    of    legislative    centralization 

*"  Debates  and  Proceedings,  pp.  169-170. 

"  "Democracy   and    Efficiency,"  Atlantic   Monthly,   Ixxxvii,   pp.   295- 
296. 

18 


GENERAL  PRINCIPLES 

and  admini'strative  decentralization.  The  excessive  scope  of 
legislative  control  over  the  administration  at  the  expense  of 
administrative  control  is  also  largely  responsible  for  the  dis- 
integration of  the  administration  and  the  lack  of  unity,  coher- 
ence and  concentration  in  its  organization.  For  thereby  the 
allegiance  of  each  administrative  officer  is  to  the  law  and 
not  to  his  administrative  superior.  Herein  is  seen  also  the 
influence  of  the  doctrine  of  checks  and  balances  operating 
within  the  executive  department  itself.  The  eflfects  of  the 
endeavor  by  the  framers  of  the  American  Constitutions  to 
prevent  the  government  from  becoming  so  strong  and  efficient 
in  action  as  to  endanger  private  rights  and  individual  liberties 
are  still  observable  in  the  present  organization  of  the  admin- 
istration in  the  American  states.  Tendencies  in  the  opposite 
direction  have  not  yet  developed  far  enough  to  eradicate  this 
fundamental  characteristic  of  the  state  administrative  system. 
The  leading  characteristics  of  the  administrative  system  of 
the  American  states,  noticed  above,  are  sufficient  to  differen- 
tiate it  from  the  systems  both  of  the  American  National 
Government  and  from  those  of  the  leading  European  govern- 
ments. The  character  of  any  particular  administrative  system 
is  determined  by  its  environment,  that  is,  by  the  totality  of  the 
social,  economic,  and  political  forces  and  historical  tradi- 
tions which  exert  an  influence  upon  it.  The  social  necessity 
of  administration  legitimizes  its  existence,  but  also  determines 
the  extent  of  its  province.^*  No  administrative  system  is  at 
any  given  time  perfectly  adapted  to  this  environment,  but 
is  in  a  continual  process  of  becoming  more  closely  adapted 
to  it.  Thus,  the  character  of  an  administrative  system  is 
always  changing,  more  or  less  rapidly,  in  order  to  become 
better  adapted  to  the  ever-changing  environment.  The  gen- 
eral type  to  which  a  particular  system  belongs,  however,  is 

^*  Address  of  M.  Cooreman  before  the  First  International  Congress  on 
the  Administrative  Sciences,  Rapports  et  Comptes  Rendus  du  Congres, 
V,  Part  II,  p.  9. 

19 


AMERICAN  STATE  ADMINISTRATION 

nevertheless  capable  of  fairly  accurate  determination.  The 
administrative  organization  will  be  bound  to  be  more  or  less 
advanced  in  type,  largely  according  to  the  importance  and 
complexity  of  the  functions  performed  by  it.  The  adminis- 
trative system  found  in  the  American  National  Government 
has  diverged  from  the  type  found  in  the  states,  partly  on 
account  of  the  extent  of  the  President's  power  of  removal, 
partly  on  account  of  the  greater  scope  and  magnitude  of  the 
functions  performed  by  the  national  government,  and  partly 
on  account  of  the  fewer  direct  points  of  contact  between  that 
government  and  the  individual  citizen.  The  principal  Euro- 
pean countries  have  developed  an  efficient  type  of  administra- 
tive organization  largely  on  account  of  the  external  pressure 
of  powerful  neighbors.  With  them,  local  self-government  and 
private  rights,  however  desirable  theoretically,  could  not  be 
allowed  to  stand  in  the  way  of  national  safety.  In  the  case 
of  an  administrative  system  where  no  such  external  pressure 
exists,  either  because  of  geographical  isolation  or  because  the 
state  is  merely  a  subordinate  part  of  a  larger  state,  the  ad- 
ministrative system  need  not  be  so  highly  or  efficiently  or- 
ganized. The  fact,  therefore,  that  the  American  states  are 
merely  component  parts  of  a  larger  state  materially  affects 
the  character  of  their  administrative  systems.  Thus,  certain 
important  functions,  such  as  the  carrying  on  of  foreign  rela- 
tions and  protection  from  foreign  invasion,  are  taken  care  of 
by  the  national  government  to  the  practical  exclusion  of  the 
states.  Again,  the  subordinate  position  of  the  states  has  made 
local  self-government  and  decentralization  possible  because  a 
high  degree  of  administrative  efficiency  has  not  been  found 
necessary  to  state  Hfe.  The  functions  to  be  performed  by 
the  state  governments  have  hitherto  been  of  relatively  slight 
magnitude  or  complexity.  But  this  condition  is  gradually 
changing,  and,  as  it  changes,  the  decentralized  and  disin- 
tegrated administrative  system  in  the  states  is  found  to  be 
more  and  more  inadequate  to  meet  the  exigencies  of  the  new 

20 


GENERAL  PRINCIPLES 

order.  The  administrative  functions  which  modern  conditions 
require  that  the  American  states  shall  undertake  are  of  such 
increasing  extent,  variety  and  complexity  that  the  states  can 
scarcely  afford  longer  to  remain  without  a  more  unified,  con- 
centrated  and   efficient   type   of   administrative   organization. 

REFERENCES  AND  COLLATERAL  READING 

Aucoc,  L.  Conferences  sur  I'Administration  et  le  Droit  Adminis- 
tratif,  i,  Bk.  I,  Ch.  III. 

Dicey,  A.  V.     The  Law  of  the  Constitution,  7th  ed.,  Ch.  XII. 

Ford,  H.  J.  "Politics  and  Administration,"  Annals  of  the  Ameri- 
can Academy  of  Political  and  Social  Science,  xvi,  pp.  177-188. 

Freund,  E,  "American  Administrative  Law,"  Political  Science 
Quarterly,  ix,  pp.  403-425- 

GooDNOW,  F.  J.    Politics  and  Administration,  Chs.  I-V. 

• .     Principles    of    the   Administrative   Law    of    the    United 

States,  Bks.  I  and  VI. 

James,  H.  G.  Principles  of  Prussian  Administration.  Introduc- 
tion. 

Wilson,  Woodrow.  "The  Study  of  Administration,"  Political 
Science  Quarterly,  ii,  pp.  197-222. 

Wyman,  B.    Principles  of  Administrative  Law,  Ch.  VIII. 


PART  II 

THE    ORGANIZATION    OF    THE    ADMINIS- 
TRATION 


CHAPTER   II 
THE  STATE  GOVERNOR 

Of  the  three  principal  American  types  of  governmental  ex- 
ecutives,— president,  governor,  and  mayor — the  governor 
takes  priority  over  the  other  types  in  two  important  respects. 
In  the  first  place,  the  governor  was  the  original  form  of 
executive  found  in  America.  The  first  holder  of  this  office 
was  Lord  Delaware,  of  Virginia,  who  was  made  governor 
of  that  colony  under  the  charter  of  1609,  ten  years  before 
the  first  representative  assembly,  nearly  eighty  years  before 
the  first  city  charter  and  one  hundred  and  eighty  years  be- 
fore the  first  president  was  inaugurated.  The  evolution  of 
the  office  of  governer  has  proceeded  without  serious  interrup- 
tion from  that  date  to  the  present.  In  the  second  place,  partly 
on  account  of  its  priority  in  time,  the  office  of  governor  has 
played  an  important  role  in  serving  in  part  as  a  model  for 
the  formation  of  the  other  principal  types  of  American  ex- 
ecutive authority.  The  present  position  of  the  state  governor 
is  a  noteworthy  example  of  the  influence  of  past  conditions 
and  of  the  past  state  of  public  feeling  upon  the  character  of 
present  political  organization.  In  order,  therefore,  to  render 
more  intelHgible  the  present  organization  of  state  executive 
power,  it  is  desirable  to  consider  briefly  the  office  of  the  colonial 
governor. 

The  Colonial  Governor. — The  dependent  condition  of  the 
American  Colonies  upon  the  Mother  Country,  prior  to  the 
Revolution,  necessarily  involved  the  exercise  by  the  imperial 
government  of  certain  forms  of  control  over  governmental 
organization  and  acts  in  the  Colonies.    This  control  is  found 

25 


'  AMERICAN  STATE  ADMINISTRATION 

to  some  extent  in  connection  with  all  three  departments  of 
colonial  government  (in  so  far  as  these  were  differentiated), 
but  is  especially  noticeable  in  the  case  of  the  executive  au- 
thority. The  colonial  governors  were,  for  the  most  part,  ap- 
pointed by  the  English  Crown  either  directly  or  indirectly 
through  the  proprietor,^  and  served  during  the  pleasure  of 
the  kinj.  Although  Colonists  were  occasionally  appointed 
to  this  position,  it  was  natural  under  the  circumstances  that 
the  appointees  should  more  frequently  be  drawn  from  the 
class  of  men  who  had  the  ear  of  the  king  or  of  his  favorites 
in  England.  The  fact  that  the  governor  was  usually  chosen 
neither  by  the  Colonists  nor  from  among  their  number  had, 
of  course,  an  important  bearing  upon  their  attitude  and  'feel- 
ing towards  him.  They  were  inclined  to  look  upon  him,  par- 
ticularly during  the  later  colonial  period,  as  an  outsider  not 
subject  to  their  control,  and  to  view  with  jealousy  any  ex- 
tension of  his  power. 

The  popular  distrust  of  the  colonial  executive  was,  in  many 
instances,  well  founded.  The  inability  or  disinclination  of 
many  colonial  governors  to  administer  affairs  from  the  stand- 
point of  the  best  interests  of  the  Colonies,  as  distinguished 
from  those  of  the  Mother  Country,  arose  not  only  from  the 
control  over  the  appointment  and  tenure  of  the  governor 
exercised  by  the  imperial  government,  but  also  from  the  dual 
position  which  the  governor  occupied.  Unlike  the  state  gov- 
ernor of  the  present  time,  who  seldom  acts  as  the  agent  of 
any  authority  outside  the  state,  the  colonial  governor  found 
an  important  part  of  his  duties  to  consist  in  acting  as  the 
agent  in  his  colony  of  the  Imperial  Government.  He  was, 
for  example,  the  principal  medium  of  communication  between 
the  Colony  and  the  home  government,  and  it  was  his  duty  to 
see  that  imperial  laws  applying  to  the  Colony  were  enforced, 
and  that  no  law  was  enacted  in  the  Colony  which  would  be 

'In  Connecticut  and  Rhode  Island  and  (during  the  seventeenth  cen- 
tury) in  Massachusetts  Bay  and  Plymouth,  the  governors  were  elective. 

26 


THE  STATE  GOVERNOR 

in  conflict  with  the  laws,  or  injurious  to  the  interests,  of  the 
Mother  Country .^  It  was  inevitable  that,  in  the  performance 
of  his  functions  as  agent  of  the  imperial  government  and  as 
head  of  the  colonial  government,  apparently  irreconcilable 
conflicts  should  sometimes  arise  between  the  interests  of  the 
two  governments,  which  the  governor,  naturally  in  view  of  the 
circumstances  of  his  position,  would  not  infrequently  decide 
in  favor  of  the  imperial  government.  The  conflict  of  interest 
between  the  two  governments  was  apparently  accentuated 
through  the  rise  of  the  elective  assemblies,  which  on  account 
of  their  origin  were  just  as  naturally  inclined  to  side  with 
the  people  of  the  Colony  in  any  controversy  with  the  gov- 
ernor or  with  the  imperial  government.  It  thus  came  about, 
particularly  in  the  later  colonial  period,  that,  both  actually 
and  in  the  minds  of  the  Colonists,  the  legislative  assemblies 
represented  their  interests,  while  the  governor,  as  a  general 
rule,  represented  the  conflicting  desires  and  purposes  of  the 
imperial  government.  Legally,  the  governor  was  responsible 
not  to  the  Colonists,  but  only  to  the  English  Crown  and  Courts. 
The  powers  of  the  appointed  governor,  in  both  of  the  main 
aspects  of  his  office,  were  largely  determined  by  the  pro- 
visions of  the  royal  charters,  commissions  and  instructions. 
His  powers  and  duties  were  also  sometimes  defined  by  act 
of  Parliament  or  even  by  act  of  the  Colonial  Assembly,  pro- 
vided such  acts  were  not  disallowed  by  the  Crown  and  not 
in  conflict  with  the  Governor's  Commission.^  It  appears  that 
the  governor  also  exercised  a  certain  limited  authority  by 
analogy  with  the  king's  prerogative.  "The  vice-regal  concep- 
tion of  the  governor's  office,"  says  Greene,  "determined  not 
only  the  provisions  of  the  royal  Commission,  but  also  sup- 
plied a  rule  of  action  in  matters  concerning  which  the  Com- 
mission itself  was  silent."  * 

'  E.  B.  Greene,  The  Provincial  Governor,  Ch.  IV. 
'Ibid.,  p.  97- 
*  Ibid.,  p.  92. 

27 


AMERICAN  STATE  ADMINISTRATION 

The  executive  organs  of  government,  particularly  during 
the  early  period  of  colonial  development,  were  not  clearly 
differentiated  from  the  legislative  and  judicial,  and  at  no  time 
was  a  sharp  separation  of  powers  effected.  The  governor  was 
himself  an  important  part  of  the  legislative  system.  The 
governor's  council,  which,  in  addition  to  its  function  as  an 
advisory  body  to  the  governor,  acted  as  the  upper  house  of 
the  colonial  legislature,  was  appointed  by  the  Crown,  usually 
on  the  recommendation  of  the  governor.  In  the  hands  of 
the  governor  rested  the  important  powers  of  summoning, 
proroguing  and  dissolving  the  assembly,  and  of  recommending 
legislation,  and  over  its  acts  he  possessed  an  absolute  veto. 
The  governor  also  exercised  directly  a  certain  amount  of 
legislative  authority  through  his  power  to  issue  ordinances. 
With  respect  to  the  judiciary,  the  governor,  with  the  advice 
of  his  council,  sometimes  erected  courts  of  justice  without 
legislative  process.  The  appointment  of  judges  and  justices 
of  the  peace  was  generally  vested  in  governor  and  council. 
Finally,  the  governor  and  council  exercised  direct  judicial 
power  in  pardoning  offenders  and  in  hearing  civil  cases  on 
appeal.^ 

As  there  was  thus  no  clear  differentiation  of  executive  au- 
thority, so  there  was  no  definite  location  of  administrative 
power.  The  governor  was  rather  a  political  than  an  adminis- 
trative officer.  Administration  was,  of  course,  in  a  rudi- 
mentary stage  of  development,  and  only  the  more  elementary 
and  fundamental  administrative  powers,  such  as  the  preserva- 
tion of  peace  and  order,  the  administration  of  justice,  the 
care  of  dependents,  taxation  and  finance,  and  the  building 
and  maintenance  of  roads  and  bridges,  were  exercised  by  any 
authority  within  the  colony.  These  powers  were  exercised 
either  by  the  governor  or  by  local  officers,  or  by  the  colonial 
legislature,  or  directly  by  the  Crown.  The  principal  adminis- 
trative powers  exercised  by  the  governor  were  the  command 

°  E.  B.  Greene,  The  Provincial  Governor,  Ch.  IV,  p.  134. 

28 


THE  STATE  GOVERNOR 

of  the  colonial  military  force  and  the  appointment  and  re- 
moval of  military  and  certain  civil  officers,  such  as  judges, 
justices  of  the  peace  and  sheriffs.  His  appointment  of  mili- 
tary officers  did  not  require  confirmation,  but  in  the  appoint- 
ment of  civil  officers  he  ordinarily  acted  with  the  advice  and 
consent  of  council. 

The  control  over  the  finances  has  always  been  recognized 
as  such  an  important  power  that  the  authority  which  is  able 
to  exercise  it  is  able  largely  to  control  the  entire  government 
and  administration.  It  is  interesting  to  note,  therefore,  that 
although  the  colonial  governors  at  first  exercised  some  control 
over  this  matter,  they  gradually  lost  it  as  it  was  absorbed  by 
the  colonial  legislatures.*  The  struggle  over  the  purse  in  the 
colonial  governments  reproduced  on  a  smaller  scale  the  his- 
toric contest  between  king  and  Commons  in  England,  and  the 
result  in  both  cases  was  the  same.  The  control  of  the  funds 
gave  the  assembly  an  effective  instrument  of  control  over 
the  governor.  Although  the  governor  commanded  the  militia, 
nevertheless  his  power  in  this  respect  was  very  small  unless 
funds  were  forthcoming  for  its  maintenance.  Although  he 
had  legally  the  power  of  making  appointments  without  con- 
sulting the  lower  house  of  the  legislature,  nevertheless  in 
practice  the  wishes  of  the  latter  body  had  to  be  taken  into 
consideration,  for  upon  its  action  depended  generally  the 
appropriation  for  the  salary  of  the  governor's  appointees,  as 
well  as  that  of  the  governor  himself.  From  control  over  the 
supply  of  funds  it  was  a  short  step  for  the  legislature  to 
assume  the  right  to  direct  the  manner  in  which  such  funds 
should  be  spent.  In  many  of  the  colonies  the  Assembly  also 
assumed  the  right  to  appoint  financial  officers,  notably  the 
provincial  treasurers,  and  in  this  way  acquired  a  more  direct 
control  over  financial  administration  than  would  otherwise 
have  been  possible. 

In  contending  against  what  he  considered  the  aggressions 

*  P.  L.  Kaye,  The  Colonial  Executive  Prior  to  the  Restoration,  p.  65. 

29 


AMERICAN  STATE  ADMINISTRATION 

of  the  legislature,  the  governor  had  important  weapons  at 
his  disposal.  Through  his  power  of  dispensing  patronage  to 
the  members  of  the  legislature  or  their  henchmen,  he  was 
sometimes  able  to  secure  such  legislation  as  he  desired. 
Through  his  power  of  absolute  veto  he  was  able  to  prevent 
the  enactment  of  laws  which  he  considered  obnoxious,  though 
this  power  was  somewhat  limited  through  the  practice  of 
the  legislature  in  attaching  riders  to  bills,  particularly  those 
carrying  appropriations.  Another  powerful  weapon  in  the 
hands  of  the  governor  was  that  of  dissolving  the  assembly. 
Even  the  threat  of  dissolution  was  sometimes  sufficient  to 
bring  a  recalcitrant  legislature  to  terms,  for  such  action  would 
render  it  necessary  for  the  members  to  undergo  the  expense 
and  uncertainty  of  securing  their  reelection.  Where  the  mem- 
bers, however,  were  certain  of  the  support  of  the  people, 
which  was  more  frequently  the  case,  a  threat  of  dissolution 
naturally  was  less  effective.  Perhaps  even  more  dangerous 
than  the  threat  of  dissolving  a  recalcitrant  legislature  was 
the  failure  to  dissolve  a  subservient  one,  but  this  power  was 
limited  by  the  passage  of  triennial  and  septennial  acts.'' 

With  regard  to  the  merits  of  the  controversy  between  the 
colonial  executive  and  the  legislature,  we  are  not  particularly 
concerned.  Theoretically,  however,  it  may  be  said  that  the 
extent  to  which  the  legislature  undertook  to  control  the  gov- 
ernor and  to  interfere  in  the  exercise  of  administrative  func- 
tions was  inconsistent  with  the  attainment  of  any  large  degree 
of  administrative  efficiency.  Administrative  efficiency,  how- 
ever, was  not  considered  by  the  Colonists  as  by  any  means 
so  important  as  popular  control  over  the  executive,  and,  in 
their  view,  such  control  could  be  best  secured  by  enlarging 
the  power  of  the  representative  body  even  to  the  extent  of 
interfering  with  the  executive  in  the  exercise  of  powers  which, 
theoretically,  should  belong  strictly  and  solely  to  him.  In  the 
contest  between  the  governor  and  the  legislature,  therefore, 

'  Greene,  Provincial  Governor,  p.   155. 

30 


THE  STATE  GOVERNOR 

the  people  sided  emphatically  with  the  legislature;  and  the 
important  point  to  notice  is  that,  as  a  result  of  the  contest, 
the  people  of  the  Colonies  became  embittered  in  general 
against  the  exercise  of  executive  or  one-man  power.  This 
fact  has  an  important  bearing  upon  the  position  of  the  gov- 
ernor under  the  constitutions  which  it  became  necessary  for 
the  American  states  to  draw  up  after  the  Revolution. 

The  Governor  Under  the  First  State  Constitutions. — The 
Revolutionary  Constitutions  were  largely  adaptations  of  the 
Colonial  Charters  to  new  conditions  and  were  framed  in  the 
light  of  colonial  experience.  In  drawing  up  these  new  instru 
ments  of  government,  the  f  ramers  were  also  influenced  to  some 
extent  by  the  prevalent  theory  of  the  separation  of  powers, 
or  checks  and  balances,  which  many  held  to  be  the  sine  qua  non 
of  liberty.  In  pursuance  of  this  principle,  distributive  clauses 
were  placed  in  nearly  all  the  first  state  constitutions.  The 
framers,  however,  by  no  means  carried  the  principle  out  to 
its  logical  conclusion  in  constructing  the  actual  framework  of 
government.  They  were,  in  fact,  influenced  more  by  conditions 
and  experience  than  by  theory. 

In  making  provision  for  the  executive  department,  the 
framers  of  the  first  state  constitutions  were  influenced  prin- 
cipally by  the  remembrance  of  executive  tyranny  in  colonial 
times,  and  determined  therefore  that  the  executive  department 
should  be  made  so  dependent  that  this  danger  would  no  longer 
exist.  Since  allegiance  to  Great  Britain  had  been  renounced, 
it  became,  of  course,  necessary  to  change  the  methods  of 
selecting  the  state  governor.  Accordingly,  in  a  few  of  the 
states,  the  governor  was  made  elective  by  the  people,  but 
in  the  large  majority  of  states  he  was  made  elective  by  the 
legislature.  This  provision  alone  would  have  revolutionized 
the  position  of  the  governor  under  the  new  constitutions. 
No  longer  was  he  responsible  to  the  British  Crown  alone, 
but  in  so  far  as  selection  carries  responsibility,  he  was  now 
responsible  to  the  people  of  the  state,  either  directly  or  in- 

31 


AMERICAN  STATE  ADMINISTRATION 

directly  through  the  representatives  of  the  people  in  the  legis- 
lature. 

When  it  came  to  defining  the  powers  of  the  governor,  the 
change  in  his  position  and  method  of  selection  should  logically 
have  rendered  it  comparatively  safe  to  intrust  him  with  au- 
thority ample  for  the  control  of  the  executive  department  of 
the  government  and  the  state  administration.  But  the  con- 
flicts between  the  colonial  executives  and  legislatures  had,  as 
we  have  seen,  embittered  the  men  of  that  time  against  the 
exercise  of  executive  authority.  A  habit  of  political  thought, 
once  definitely  acquired,  is  not  easily  thrown  off,  even  after 
the  occasion  for  its  existence  has  disappeared.  Hence,  in 
the  Revolutionary  Constitutions,  the  predominant  legal  posi- 
tion was  assigned  to  the  legislature,  which  was  made  the  con- 
trolling and  regulating  force  in  the  new  state  governments, 
while  the  executive  was  rendered  weak  and  inefiicient  both  in 
organization  and  function.  As  Madison  succinctly  expressed 
it  in  the  Convention  of  1787,  "The  executives  of  the  states 
are  in  general  little  more  than  ciphers ;  the  legislatures  omnip- 
otent." « 

The  concrete  means  whereby  the  governor,  under  the  Revo- 
lutionary Constitutions,  was  brought  to  this  dependent  posi- 
tion, were,  in  addition  to  selection  by  the  legislature  in  most 
of  the  states,  mainly  as  follows :  In  Pennsylvania  and  one 
or  two  other  states  the  governorship  was  virtually  put  into 
commission,  as  the  nominal  governor,  or  "president,"  as  he 
was  then  sometimes  called,  was  merely  the  presiding  officer 
of  a  board  or  council,  with  which  he  shared  the  executive 
powers.  Furthermore,  in  nearly  all  the  states,  there  was  an 
executive  council,  consisting  of  from  three  to  twelve  members 
who  were  chosen,  not  by  the  governor,  but  either  by  the  legis- 
lature or  the  people.  It  had  no  special  functions,  but  advised 
and  checked  the  governor  in  the  exercise  of  his  executive 
powers.     In  a  large  majority  of  states  the  governor's  term 

*  Elliot's  Debates,  v,  327. 

32 


THE  STATE  GOVERNOR 

of  office  was  one  year,  and  in  no  case  was  it  longer  than  three 
years.  Not  only  was  his  term  short,  but  restrictions  upon 
his  reelection  were  frequently  placed  in  the  organic  laws.  The 
governor  had  extremely  scanty  means  of  exercising  any  con- 
trol over  the  administration.  He  could,  it  is  true,  in  some 
states  appoint  a  few  administrative  officers,  but  such  ap- 
pointments were  in  all  cases  subject  to  the  approval  of  the 
executive  council.  In  New  York  there  was  a  "Council  of 
Appointment,"  consisting  of  four  state  senators,  elected  by 
the  assembly  and  presided  over  by  the  governor,  which  had 
the  power  of  appointing  practically  all  the  administrative  and 
judicial  officers  of  the  state,  except  a  few  who  were  appointed 
by  the  legislature  or  elected  by  the  people.  In  most  of  the 
states,  however,  the  large  majority  of  the  state  administrative 
officers  were  elected  by  the  legislature.  Thus,  an  important 
power,  which  might  have  enabled  the  governor  to  control  the 
state  administration  to  a  considerable  extent,  was  very  largely 
withheld  from  him  and  lodged  in  the  legislature. 

Not  only  was  the  legislature  thus  possessed  of  a  large  con- 
trol over  the  administration,  but  its  power  over  legislation  was 
also  increased  and  the  power  of  the  governor  in  this  field 
was  correspondingly  curtailed.  The  autocratic  character  of 
the  previous  royal  governorship  was  entirely  shorn  away. 
The  Virginia  Constitution  of  1776  provided  that  the  governor 
"shall  not  under  any  pretense  exercise  any  power  or  preroga- 
tive by  virtue  of  any  law,  statute  or  custom  of  England." 
In  particular,  the  governor's  powers  of  prorogation,^  disso- 
lution and  absolute  veto  over  the  acts  of  the  legislature  were 
taken  away  from  him.  Some  check  over  the  legislature,  how- 
ever, was  left  in  the  hands  of  the  governor  under  the  Massa- 
chusetts Constitution  of  1780,  which  gave  the  governor  a 
qualified  veto,  subject  to  being  overridden  by  a  two-thirds 
vote  of  the  legislature.     In  New  York,  in  order  to  prevent 

"  In  New  York  the  governor  might  prorogue  the  legislature,  but  only 
for  a  period  of  sixty  days  in  any  one  year. 

33 


AMERICAN  STATE  ADMINISTRATION 

hasty  legislation,  a  "Council  of  revision"  was  provided,  con- 
sisting of  the  "governor,  the  Chancellor,  and  the  judges  of  the 
Supreme  Court,  or  any  two  of  them,  together  with  the  gov- 
ernor." ^°  This  body  had  the  power  of  veto,  but  here  again 
might  be  overridden  by  a  two-thirds  vote  of  both  houses  of 
the  legislature.^^  It  is  of  some  significance  that  both  these 
states  of  Massachusetts  and  New  York,  in  which  the  governor 
retained  at  least  a  qualified  veto  power,  were  among  the  few 
states  in  which  that  officer  was  elected  by  popular  vote.  In 
those  states  where  the  governor  was  elected  by  the  legisla- 
ture, it  would,  of  course,  have  been  incongruous  to  allow 
the  executive  a  veto  over  acts  of  the  legislature.  On  the  whole, 
the  legislative  power  of  the  governor  was  negligible. 

The  governor  retained  his  position  as  commander-in-chief 
of  the  military  forces  of  the  state,  had  nominally  general 
supervision  over  the  enforcement  of  the  laws,  and,  to  some 
extent,  the  power  of  pardon.  The  latter  power  was  limited 
in  most  states,  however,  by  various  requirements,  such  as, 
that  he  must  act  only  with  consent  of  council,  or  not  where 
otherwise  directed  by  statute,  nor  with  respect  to  certain 
crimes,  nor  in  impeachment  cases.  The  dependence  of  the 
governor  upon  the  legislature  was  accentuated  through  the 
control  which  the  latter  body  exercised  over  his  salary.  A 
few  of  the  early  constitutions  provided,  as  in  the  Massa- 
chusetts Constitution  of  1780,  that  he  should  have  "an  hon- 
orable stated  salary,  of  a  fixed  and  permanent  value,  estab- 
lished by  standing  laws,"  ^^  but  only  in  South  Carolina  was 

"TV.   Y.  Constitution  of  1777,  Thorpe,  p.  2628. 

"  The  first  constitution  of  Illinois,  adopted  in  1818,  provided  for  a 
council  of  revision.  It  was  constituted  in  much  the  same  way  as  that 
of  New  York,  but  its  veto  might  be  overridden  by  a  majority  of  the 
members  elected  to  the  two  houses.  See  Thorpe,  Charters  and  Con- 
stitutions, p.  978.  A  limited  veto  power  was  also  vested  in  the  gov- 
ernor or  "president"  of  South  Carolina  under  the  short-lived  Constitu- 
tion of  1776.    Ibid.,  p.  3244, 

"Ibid.,  p.  1903. 

34 


THE  STATE  GOVERNOR 

the  exact  amount  of  his  salary  definitely  fixed  in  the  consti- 
tution and  thus  placed  beyond  the  reach  of  the  legislature  for 
purposes  either  of  bribery  or  of  intimidation.^^  In  view  of 
the  provisions  in  the  first  state  constitutions,  affecting  the  rela- 
tions of  the  executive  and  the  legislature,  it  appears  that, 
"owing  to  the  dependence  of  the  executive  upon  the  legislature 
both  in  respect  to  salaries  and  appointment  (in  many  cases), 
the  latter  could  quite  easily  absorb  all  administrative  powers 
not  expressly  conferred  upon  the  former,  and  could  even 
seriously  cripple  the  executive  power  in  the  exercise  of  those 
powers  which  were  expressly  conferred."  ^* 

Later  Development  of  the  Governor's  Office. — The  develop- 
ment of  the  office  of  governor  since  the  adoption  of  the  state 
constitutions  of  the  Revolution  may  be  roughly  divided  into 
two  main  periods,  the  first  extending  approximately  to  the  mid- 
dle of  the  nineteenth  century,  and  the  second  from  that  date 
to  the  present  time.  During  the  first  of  these  two  periods, 
certain  tendencies  may  be  noted  as  having  an  influence  on  the 
position  of  the  governor.  In  the  first  place,  the  election  of 
the  governor,  which  had  at  first  in  most  states  been  vested 
in  the  legislature,  was  gradually  shifted  until  he  became 
everywhere  elective  by  popular  suffrage.  He  thus  stood  in 
this  respect  at  least  upon  a  plane  of  equality  with  the  law- 
making body  itself.  In  the  second  place,  the  legislature,  which 
at  the  beginning  of  the  period  was  practically  omnipotent,  not 
only  legislatively  but  also  administratively  and  in  some  states 
constitutionally,  gradually  declined  in  power.  This  decline  of 
the  legislature  was  due  principally  to  the  loss  by  the  people 
of  the  complete  confidence  which  they  had  originally  pos- 
sessed in  that  body  as  their  immediate  representatives.  Sad 
experience  had  taught  them  that  such  confidence  was  often 

"  South  Carolina  Constitution  of  1776.  Thorpe,  Charters  and  Con- 
stitutions, p.  3247. 

"  W.  C.  Webster,  "State  Constitutions  of  the  Revolution,"  Annals  of 
the  American  Academy  of  Political  and  Social  Science,  ix,  p.  401. 

35 


AMERICAN  STATE  ADMINISTRATION 

misplaced,  and  specific  cases  of  legislative  corruption  and 
extravagance  emphasized  the  need  of  curtailing  the  great 
powers  of  the  legislature  and  transferring  some  of  them  to 
another  body.  To  some  extent  the  governor  benefited  through 
this  transfer,  and  there  are  evidences  during  this  period  of 
an  increasing  degree  of  confidence  in  the  executive  as  com- 
pared with  the  legislature.  The  term  of  the  governor  was 
gradually  increased  from  the  one  year  to  which  it  originally 
extended.  In  the  new  constitutions  of  this  period  and  in 
amendments  to  the  older,  the  powers  and  emoluments  of  the 
governor  were  less  frequently  left  at  the  complete  mercy  of  the 
legislature.  In  particular,  the  veto  power  was  extended  to 
him  until  he  possessed  this  power  in  the  majority  of  the  states, 
and,  at  the  same  time,  the  fraction  of  the  legislature  necessary 
to  overcome  his  veto  was  increased.  For  example,  the  New 
York  Constitution  of  182 1  abolished  the  council  of  revision, 
transferred  the  veto  power  to  the  governor  and  required  a 
two-thirds  vote  of  the  legislature  to  override  it.  The  vetoes 
of  President  Jackson  on  the  bank  and  internal  improvement 
measures  had  rendered  the  veto  power  somewhat  unpopular 
with  the  Whigs.  Mr.  Brown,  in  the  Ohio  Constitutional  Con- 
vention of  1850,  denounced  it  as  a  "one-man  power  derived 
from  the  prerogative  of  the  British  King."  "  But,  on  the 
whole,  it  probably  met  the  approval  of  the  majority  of  the 
people.  The  extravagance  of  state  legislatures  in  voting  ap- 
propriations and  bond  issues  for  internal  improvements  in 
excess  of  the  resources  of  the  state  to  meet  them,  frequently 
over  the  veto  of  the  governor,  brought  a  reaction. ^^  As  Mr. 
Hofifman  expressed  it  in  the  New  York  Constitutional  Conven- 
tion of  1846,  "he  had  heard  of  the  expression  often  from  men 

"Debates  and  Proceedings  of  the  Ohio  Constitutional  Convention  of 
1850,  p.  89. 

"  See  remarks  of  Mr.  Peters  in  Illinois  Constitutional  Convention  of 
1847,  Illinois  State  Register  (Springfield),  July  20.  1817,  i,  no. 
18;  and  of  Mr.  Downs  in  the  Louisiana  Constitutional  Convention 
of  1845,  Debates,  p.  302. 

36 


THE  STATE  GOVERNOR 

of  every  class,  at  the  close  of  a  legislative  session,  of  thanks 
to  God  that  the  legislature  had  adjourned  without  doing  any 
more  mischief,"  and,  with  regard  to  the  governor's  veto  power, 
he  declared  that  it  was  popular  because  "it  had  been  for  the 
last  half  century  a  power  exercised  in  direct  vindication  of 
the  rights  of  the  masses  against  monopoly,  against  privilege, 
against  extravagance  and  debt."  "  As  compared  with  the  leg- 
islature, the  relative  power  and  dignity  of  the  governor  during 
this  period  increased. 

If,  during  this  period,  the  legislative  power  of  the  governor 
increased,  his  control  of  the  state  administration,  except  in 
Pennsylvania,  where  he  had  a  considerable  power  of  appoint- 
ment, suffered,  on  the  whole,  a  decline.  This  was  perhaps  due 
in  some  slight  degree  to  a  lingering  animosity  toward  "one- 
man  power"  and  towards  the  governor's  office  as  savoring  of 
monarchy — a  relic  of  colonial  times  when  the  governor  was 
appointed  by  the  Crown.  Moreover,  in  the  new  states  of  the 
Middle  West,  such  as  Ohio  and  Michigan,  which  had  had 
territorial  governments  before  becoming  states,  the  situation 
of  the  colonies  was  to  some  extent  reproduced.  Just  as  the 
colonial  governor  had  been  appointed  by  higher  outside  au- 
thority in  England,  so  the  territorial  governors  of  the  new 
Western  States  had  been  appointed  by  a  higher  outside  power 
in  Washington,  and  their  authority  had  frequently  conflicted 
with  that  exercised  by  the  territorial  representatives  of  the 
people.^^  The  result  in  both  cases,  when  the  new  consti- 
tutions were  framed,  was  the  placing  upon  the  governor  of 
practically  similar  restrictions.  Michigan,  however,  following 
the  lead  of  Pennsylvania,  gave  the  governor,  under  the  con- 
stitution of  1835,  a  comparatively  large  power  of  appointment, 
but  in  1850  this  was  withdrawn. 

"Debates  and  Proceedings  in  the  New  York  Constitutional  Conven- 
tion of  1846,  pp.  285-287. 

"  Cf.  statement  of  Mr.  Robertson  in  the  Ohio  Constitutional  Con- 
vention of  1830.    Debates  and  Proceedings,  p.  91. 

37 


AMERICAN  STATE  ADMINISTRATION 

The  decline  in  the  governor's  administrative  powers,  how- 
ever, during  the  first  half  of  the  nineteenth  century  was  due, 
in  spite  of  the  general  dread  of  "one-man"  power,  not  so 
much  to  special  animosity  towards  the  executive  power  itself, 
as  to  the  widespread  feeling  that  more  powers  of  government 
should  be  lodged  directly  in  the  hands  of  the  people.  The 
downfall  of  the  Federalists  at  the  opening  of  the  century  and 
the  rise  of  the  Democratic-Republican  party  was  one  symp- 
tom of  a  movement  which  spread  throughout  the  country  and 
continued  to  grow,  until  it  may  almost  be  called  a  great  demo- 
cratic wave.  In  particular,  the  new  states  of  the  Middle  West, 
formed  as  a  result  of  the  opening  up  and  preemption  of  new 
lands,  became  hot-beds  of  almost  unadulterated  democracy, 
both  as  to  the  forms  of  government  set  up  and  as  to  the  actual 
rights  enjoyed.  The  movement  was  accompanied  by  a  sublime 
faith  in  the  unlimited  capacity  of  the  people  to  perform  al- 
most any  political  function.  One  important  manifestation 
of  this  democratic  wave  was  the  introduction  of  frequent 
popular  elections  of  almost  all  public  officials,  legislative,  ex- 
ecutive, administrative  and  judicial.  This  power  of  the  peo- 
ple to  elect  their  officials  received  the  loud  lip-worship  of 
demagogues,  and  the  few  public  men,  who,  while  maintaining 
that  they  were  true  democrats,  had  the  courage  to  oppose 
the  indiscriminate  extension  of  the  popular  power  of  electing 
officials  were  denounced  as  "Federalists,"  as  if  the  mere  ap- 
plication to  them  of  this  epithet  effectually  disposed  of  all  their 
arguments. 

The  widespread  extension  of  at  least  nominal  popular  se- 
lection of  public  officers,  while  liberating  the  governor  to  some 
extent  from  the  direct  control  of  the  legislature  by  taking 
from  that  body  the  selection  of  the  governor  himself  and  of 
the  state  administrative  officers,  at  the  same  time  greatly  cut 
down  the  governor's  appointing  power,  except  in  Pennsylvania, 
and,  for  a  short  time,  in  Michigan.  This  result  may  be  illus- 
trated in  the  case  of  New  York,  where,  under  the  Constitu- 

38 


THE  STATE  GOVERNOR 

tion  of  1777,  the  governor,  in  connection  with  the  council  of 
appointment,  had  power  to  appoint  all  other  state  officers 
except  lieutenant-governor,  state  treasurer  and  subordinate  ju- 
dicial officers.  Some  doubt  as  to  the  power  of  nomination 
having  arisen,  by  an  amendment  of  1801,  this  power  was  vested 
concurrently  in  each  member  of  the  council,  including  the 
governor,^^  By  1821  the  number  of  officers,  civil  and  mili- 
tary, whose  appointment  was  vested  in  this  council  was  ap- 
proximately fifteen  thousand,  and  the  diffusion  of  responsibil- 
ity for  appointments  among  the  members  of  the  council  in- 
jected political  considerations  and  even  corruption  into  the 
making  of  appointments  to  such  an  extent  that,  by  the  Con- 
stitution of  1821,  the  council  of  appointment  was  definitely 
abolished  and  the  power  of  appointment  transferred  to  other 
bodies.  The  principal  executive  officers  of  the  state — the  sec- 
retary of  state,  comptroller,  treasurer,  attorney-general,  sur- 
veyor-general and  commissary-general — were  made  appointive 
by  joint  action  of  the  legislature.  To  the  governor  was  given 
the  appointment  of  judges,  subject,  however,  to  confirmation 
of  his  appointees  by  the  Senate.  By  1846,  when  New  York 
again  revised  her  constitution,  the  democratic  wave  was  in 
full  swing  and  both  the  principal  executive  officers  of  the 
state  and  also  the  judges  were  made  elective  by  the  people. 
Thus,  the  governor's  power  of  appointment,  and,  in  general, 
his  power  of  control  over  the  state  administration  had  been 
gradually  whittled  away  until  by  the  middle  of  the  century 
his  power  in  this  respect,  not  only  in  New  York  but  in  most 
of  the  other  states,  was  at  a  very  low  ebb.  Nor  were  his 
powers  in  other  respects  so  great  as  to  make  him  a  very  com- 
manding figure.  At  this  time  the  duties  of  the  office  in  some 
of  the  less  important  states  were  considered  so  slight  that 
it  was  not  always  thought  necessary  to  elect  to  the  position 
a  man  of  more  than  ordinary  competence,  nor,  at  that  time, 
was  he  usually  required  to  reside  continuously  at  the  seat 

"  Thorpe,  Charters  and  Constitutions,  p.  2639. 

39 


AMERICAN  STATE  ADMINISTRATION 

of  government.  Of  the  governor  of  Ohio  it  was  said  in  1850, 
without  apparently  creating  special  wonderment,  that,  as  the 
duties  of  the  office  did  not  require  him  to  remain  at  the  Capi- 
tal much  of  the  time,  he  "spent  some  of  his  time  attending 
to  his  farming  business  and  in  making  cheese."  ^° 

In  the  mid-century  constitutional  convention  of  Ohio,  Mr. 
Clark  thus  sketched  the  position  of  governor :  "The  office  of 
governor  in  this  state  is  but  nominal.  .  .  .  The  law  requires 
him  to  sign  the  commissions  of  officers,  such  as  the  justices  of 
the  peace  and  prosecuting  attorneys.  This  requires  but  little 
labor  and  might  be  dispensed  with  by  changing  the  law.  He 
is  to  fill  vacancies  in  certain  offices  until  the  legislature  meets. 
He  is  to  call  special  elections  to  fill  vacancies  in  certain  other 
cases.  He  seldom  has  occasion  to  do  either,  as  vacancies 
rarely  occur.  Experience  shows  that  an  officer  will  generally 
hang  on  to  an  office  as  long  as  he  can.  Another  duty  of  the 
governor  is  to  issue  his  proclamation,  giving  notice  of  the 
Presidential  election,  and  to  attend  here  when  the  electors 
for  President  cast  their  vote.  These  are  but  trifling  duties, 
and  occur  but  once  in  four  years.  Another  duty  is  to  grant 
pardons.  He  is  by  law  commander-in-chief  of  the  militia 
and  navy  of  this  state.  This  is  not  an  arduous  duty.  He 
spends  no  time  with  the  militia,  and  as  to  the  navy,  he  (Mr. 
C.)  knows  of  none  except  the  canal  boats  on  the  different 
ditches  of  this  state,  and  he  thinks  the  governor  does  not 
spend  much  time  in  attending  to  them.  Another  duty  is  to 
convene  the  legislature  in  urgent  cases,  and  to  adjourn  it  when 
the  two  houses  cannot  agree  on  a  time  of  adjournment,  neither 
of  which  often  occurs.  Pie  is  also  required  to  demand  fugi- 
tives from  justice,  and  to  deliver  up  such  as  flee  to  this  state. 
To  draw  this  state's  portion  of  the  public  arms.  To  approve 
the  bond  given  by  the  auditor  of  state.  To  discharge  mort- 
gages given  to  the  state.     To  notify  once  in   four  years  the 

'^Debates  and  Proceedings  of  the  Ohio  Constitutional  Convention  of 
1830,  p.  280. 

40 


THE  STATE  GOVERNOR 

assessors  to  take  the  census.  To  give  notice  of  the  sale  of 
the  canal  lands,  and  appoint  the  appraisers.  To  appoint  two 
directors  of  the  Ohio  and  Pennsylvania  Canal — to  vote  for 
directors  on  the  state's  interest  in  turnpike  road  and  slack- 
water  navigation  companies,  and  appoint  notaries  public.  All 
told,  this  is  the  sum  of  the  governor's  duties."  -^  It  would 
thus  appear  that  by  the  middle  of  the  century  the  governor 
had,  except  for  his  veto  power,  virtually  arrived  at  the  posi- 
tion of  innocuous  desuetude  described  by  a  member  of  the 
New  York  Constitutional  Convention  of  1846  as  "a  sort  of 
nominal  governor,  standing  disconnected  with  the  business  and 
interests  of  the  state,  with  his  arms  folded,  looking  on  like 
a  sentinel."  ^^  The  governor  may  be  said  to  have  been  ground 
between  the  upper  and  nether  millstones  of  the  legislature, 
which  largely  made  the  law,  and  the  judiciary,  which  was 
the  principal  agent  of  its  execution. 

A  few  words  will  suffice  to  indicate  the  general  trend  of  the 
governor's  position  since  the  middle  of  the  nineteenth  cen- 
tury. During  this  period  there  has  been  a  fairly  steady  rise 
in  the  power,  prestige  and  influence  of  his  position.  This  has 
been  brought  about  partly  through  constitutional  changes, 
partly  through  statutory  enactments,  and  partly  through  extra- 
legal influences.  Administratively,  the  governor's  powers  both 
of  appointment  and  of  removal  have  increased  somewhat  dur- 
ing this  period.  The  great  increase  which  has  taken  place 
in  the  extent  and  number  of  the  functions  undertaken  by 
the  states  has  necessitated  the  creation,  either  by  constitution 
or  statutes,  of  a  large  number  of  new  offices  and  boards  which 
were  unknown  during  the  earlier  period.  Some  of  these  new 
officers  and  boards  have  been  made  elective  by  popular  vote, 
but,  partly  through  a  decline  in  the  public  confidence  in  the 
efficacy  of  popular  elections,  and  partly,  doubtless,  owing  to 


^Debates  and  Proceedings   of   the   Ohio   Constitutional  Convention 
of  1830,  pp.  279-280. 
^^  Debates  and  Proceedings,  p.  250.     (Argus  edition.) 

41 


AMERICAN  STATE  ADMINISTRATION 

the  almost  physical  impossibility  of  placing  on  the  elective 
ballot  the  names  of  all  officers  to  be  chosen,  many  of  these 
officers  and  boards  have  been  made  appointive  by  the  governor, 
subject,  however,  in  nearly  all  cases,  to  the  confirmation  of 
the  Senate.  At  the  same  time  the  governor's  power  of  re- 
moval has  increased  to  some  extent,  though  it  is  still  greatly 
inferior  both  to  his  own  power  of  appointment  and  to  the 
power  of  removal  of  the  President  of  the  United  States.  The 
governor's  legislative  power  also,  both  legal  and  extra-legal, 
has  shown  a  considerable  expansion.  His  veto  power,  in 
particular,  has,  in  several  respects,  been  rendered  more  en- 
ergetic and  efficacious.  Finally,  he  has  acquired  a  positive 
initiative  in  legislation  through  his  extra-legal  influence.  These 
points  will  be  brought  out  more  fully  by  a  consideration  of 
the  present  position  of  the  governor. 

Present  Position  of  the  Governor:  Election,  Term,  and  Com- 
pensation.— The  tendency,  already  noted,  to  withdraw  the 
selection  of  the  governor  from  the  legislature  and  transfer  it 
to  the  people  has  now  become  complete,  so  that  in  every  state 
the  chief  magistrate  is  elected  by  popular  vote.^'  The  quali- 
fications required  of  those  who  cast  their  ballots  for  this  of- 
ficer are  the  same  as  those  required  of  voters  for  members 
of  the  state  legislature.  The  election  of  the  governor,  as 
well  as  of  the  other  state  officers  who  are  elected  on  the  same 
ballot,  usually  takes  place  at  the  same  time  as  the  election 
of  members  of  the  state  legislature,  and  also  of  members  of 
Congress  and  of  the  President  of  the  United  States.  There 
is  no  inherent  impropriety  in  the  election  of  the  governor  at 
the  same  time  with  the  state  legislature  because  the  issues  in- 
volved are  for  the  most  part  the  same  and  the  governor  is, 
in  part,  a  political  officer.  If  the  governor  were  merely  an 
administrative  officer  with  ministerial  powers,  he  should  not 
be  elected  by  popular  vote  at  all,  but,  if  so  elected,  the  elec- 

""This  election  is  direct  in  all  the  states  except  Mississippi,  where 
it  is  indirect. 

42 


THE  STATE  GOVERNOR 

tion  should  be  quite  separate  from  that  for  members  of  the 
political  department  of  the  government.  The  effect  of  elect- 
ing the  governor  at  the  same  time  with  members  of  the  state 
legislature  is  usually  that  the  governor  and  legislature  are  of 
the  same  political  complexion.  This,  however,  is  not  always 
the  case,  for,  in  Massachusetts,  the  governor  has  for  several 
terms  been  a  Democrat,  while  the  majority  of  the  legislature 
were  of  the  opposite  political  party.  In  the  case  of  the  elec- 
tion of  the  President  and  national  legislature,  however,  the 
issues  involved  are  generally  quite  different,  and  the  merging 
of  state  and  national  elections  into  one  is  apt  to  cause  a  con- 
fusion of  the  public  mind  which  would  tend  to  prevent  an 
effective  popular  control.  Governors  have  sometimes  been 
elected,  not  so  much  on  their  own  merits  or  on  the  merits  of 
the  policies  which  they  advocated,  as  because  they  were  mem- 
bers of  the  political  party  which,  for  the  time  being,  was  domi- 
nant in  national  affairs.  The  merging  of  the  state  and  na- 
tional elections  tends  to  strengthen  party  control  and  to  facili- 
tate straight  party  voting.  Previous  to  the  Civil  War,  when 
states'  rights  were  more  jealously  guarded  than  at  present, 
the  merging  of  state  and  national  elections  was  opposed  on 
the  ground  that  it  militated  against  the  dignity  of  the  state 
and  would  cause  the  public  mind  to  become  engrossed  with 
national  issues,  to  the  exclusion  of  state  affairs.^*  In  spite 
of  these  objections,  however,  considerations  regarding  the 
expense  of  holding  separate  elections  and  the  abuses  connected 
with  too  frequent  elections  have  induced  most  of  the  states, 
as  already  noted,  to  hold  them  at  the  same  time. 

In  most  of  the  states  a  majority  of  all  the  votes  cast  at  the 
election  is  not  required  to  elect  the  governor,  but  a  plurality 
of  the  votes  is  sufficient.  A  governor  may  thus  sometimes  be 
elected  by  a  minority  of  the  voters,  and  so  the  fundamental 
principle  of  majority  rule  may  be  violated.     But  the  only  al- 

"  See  speech  of  Mr.  Buchanan  in  the  Maryland  Constitutional  Con- 
vention of  i8^i,  Debates  and  Proceedings,  ii,  p.  213. 

43 


AMERICAN  STATE  ADMINISTRATION 

ternatives  would  seem  to  be  to  limit  by  law  the  number  of 
candidates  to  two  persons,  to  hold  another  election  for  the 
two  highest  candidates,  or  to  throw  the  election  into  the  hands 
of  another  body.  The  last-named  course  is  followed  in  the 
few  states  which  still  require  that  the  successful  candidate 
shall  have  a  majority  of  the  total  vote.  If  no  candidate  has 
a  majority  in  these  states,  the  legislature  in  joint  ballot  elects 
the  governor.  In  the  other  states,  the  constitutions  usually 
provide  that  if  the  two  candidates  having  the  highest  vote 
are  tied,  the  legislature,  by  joint  ballot,  shall  choose  one  of 
them  for  governor.-^  Contested  elections  for  governor  are 
also  usually  determined  by  the  legislature  on  joint  ballot,  but, 
in  some  states,  a  special  canvassing  board,  composed  of  cer- 
tain state  officers,  is  constituted  for  this  purpose.  In  Penn- 
sylvania, the  chief  justice  of  the  state  Supreme  Court  presides 
upon  the  trial  of  contested  elections  for  governor  and  decides 
questions  regarding  the  admissibility  of  evidence. ^^  This  ar- 
rangement carries  with  it  a  possible  danger  of  dragging  the 
chief  justice  into  politics,  but  has  the  advantage  of  giving  a 
judicial  appearance  to  a  trial  which  would  not  be  apt  to  be 
decided  without  regard  to  political  considerations  unless  the 
trial  body  happened,  by  a  fortunate  accident,  to  be  composed 
of  members  politically  favorable  to  the  proper  side  of  the  ques- 
tion at  issue.^^ 

Legal  qualifications  for  the  office  of  governor  are  generally 
laid  down  in  the  state  constitutions.  In  a  few  states  he  need 
possess  only  the  qualifications  of  an  elector,  but  in  most  states 
additional  requirements  are  made,  such  as  that  he  shall  have 
attained  a  certain  age,  usually  thirty  years ;  that  he  shall  have 
been  a  citizen  of  the  United  States  for  a  certain  number  of 
years,  varying  from  two  to  twenty ;  and  shall  have  been  a 

^'  See,  for  example,  Illinois  Constitution,  Art.  V,  Sect.  4. 
^°  Pennsylvania  Constitution,  Art.  IV,  Sect.  17. 

"  See  speech  of  Mr.  Buckalew,  author  of  this  provision,  in  the  Penn- 
sylvania  Constitutional  Convention  of   18/3,  Debates,  v,  pp.  238-239. 

44 


THE  STATE  GOVERNOR 

resident  of  the  state  in  which  he  is  elected  for  a  number  of 
years,  usually  five.  During  the  period  when  the  native  Ameri- 
can party  had  some  influence,  there  was  considerable  agitation 
in  favor  of  the  requirement  that  the  governor  should  be  a 
native-born  citizen  of  the  United  States,  thus  bringing  this 
provision  into  conformity  with  the  corresponding  provision 
of  the  Constitution  of  the  United  States  in  regard  to  the  presi- 
dent.   But  this  agitation  has  now  almost  entirely  subsided. 

The  placing  in  the  constitutions  of  qualifications  for  the 
chief  executive  office  in  excess  of  those  required  of  voters  or 
of  holders  of  other  offices  is  an  indication  of  the  thought  in 
the  mind  of  the  constituent  body  that  the  office  is,  or  at  least 
should  be,  one  of  some  dignity.  The  object  and  effect,  how- 
ever, of  requiring  such  qualifications  as  age,  residence  and 
citizenship  is  not  only  to  secure  in  the  gubernatorial  chair  a 
man  of  experience  and  knowledge  of  the  conditions  with  which 
he  will  have  to  deal,  but  also  to  enable  the  people  of  the  state 
the  better  to  know  him  and  to  become  acquainted  v.  ith  his 
suitability  for  the  office,  and  thus  to  exercise  a  more  intelligent 
choice  in  his  selection.  The  placing  in  the  constitution,  how- 
ever, of  qualifications  for  the  governor's  office  is  legally  a 
self-imposed  limitation  upon  the  power  of  the  people  to  elect 
whom  they  will.  Nevertheless,  such  constitutional  limitations 
are  not  likely  often  to  be  of  much  practical  importance,  for, 
even  though  such  qualifications  were  not  required  by  the  con- 
stitution, persons  not  possessing  them  would  seldom  be  elected. 
In  practice,  it  is  ordinarily  necessary  that  a  man's  name  should 
have  come  prominently  and  favorably  to  the  notice  of  the 
people  in  connection  with  the  holding  of  some  other  public 
office  before  he  would  be  considered  suitable  gubernatorial 
timber.  Several  cases,  for  example,  have  occurred,  such  as 
those  of  Governors  Deneen,  of  Illinois,  and  Folk,  of  Missouri, 
where  a  governor  had  previously  made  for  himself  a  reputa- 
tion for  ability  and  integrity  in  the  office  of  local  prosecuting 
attorney  in  one  of  the  populous  subdivisions  of  the  state.    Ex- 

45 


AMERICAN  STATE  ADMINISTRATION 

ceptional  cases  sometimes  occur,  however,  as  in  that  of  Presi- 
dent Wilson  when  he  was  elected  governor  of  New  Jersey, 
where  the  incumbent  had  not  previously  held  any  public  office. 

The  governor's  term  of  office  has,  as  we  have  seen,  been 
gradually  increased.  The  reason  for  this  development  was 
noted  as  early  as  1821  in  the  New  York  Constitutional  Con- 
vention of  that  year.  "At  first,"  said  Mr.  Sutherland,  "in  the 
old  states,  from  the  recollection  of  Colonial  vassalage,  the 
constitutions  limited  the  term  of  governors  to  a  short  time. 
The  apprehensions,  however,  entertained  of  encroachments 
from  this  branch  have  been  found  unreal,  and  consequently 
in  the  new  states,  and  more  recent  constitutions,  the  term 
of  the  governors  has  been  lengthened."  ^^  At  present,  in 
twenty-three  of  the  forty-eight  states,  the  governor's  term  is 
four  years  in  length ;  in  twenty-three  others  it  is  two  years, 
while  in  the  remaining  two  states,  New  Jersey  and  Massa- 
chusetts, it  is  three  years  and  one  year,  respectively.  In 
Massachusetts,  however,  it  is  customary  to  reelect  a  governor 
for  three  successive  terms,  so  that,  for  practical  purposes, 
he  may  be  said  to  be  elected  for  a  three-year  term,  subject  to 
the  possibility  of  recall  at  two  stated  intervals  during  his  term. 
Although  the  states  are  thus  equally  divided  between  the  two- 
year  and  the  four-year  period,  the  present  tendency,  as  noted 
in  the  recent  constitutions  of  Alabama,  Virginia,  Oklahoma, 
and  New  Mexico,  is  towards  the  longer  period.  The  old  idea 
of  rotation,  or  of  handing  around  the  office,  is  thus  gradually 
giving  away  to  the  principle  that  the  governor  should  have 
a  term  long  enough  for  him  to  learn  thoroughly  the  duties  of 
his  office  and  for  the  state  to  reap  the  advantages  of  his 
experience. 

Upon  the  same  principle  is  based  the  gradual  disappearance 
of  provisions  rendering  the  governor  ineligible  to  succeed 
himself,  though  restrictions  upon  reeligibility  are  still  found  in 

^Proceedings  and  Debates  of  the  New  York  Constitutional  Conven- 
tion of  1821,  p.  140. 

46 


THE  STATE  GOVERNOR 

a  few  states.  For  example,  the  Constitution  of  Pennsylvania, 
adopted  in  1873,  provides  that  the  governor  "shall  not  be 
eligible  to  the  office  for  the  next  succeeding  term."  ^^  The 
disappearance  of  these  provisions  is  coupled  v^ith  an  actual 
tendency  towards  reelection,  especially  in  the  states  having  the 
shorter  terms.  There  are,  however,  some  states,  such  as  Mary- 
land, where,  although  no  legal  restriction  on  reeligibility  ex- 
ists, a  governor  is  seldom  renominated,  and  almost  never  re- 
elected. This  is  probably  due,  in  part  at  least,  to  the  character 
of  his  appointments,  which  have  rendered  him  either  inaccept- 
able  to  the  party  organization  or  else  a  weak  candidate  before 
the  voters.  The  restrictions  upon  reeligibility  were  originally 
placed  in  the  constitutions  on  account  of  the  fear  that  other- 
wise the  governor  might,  soon  after  his  inauguration,  begin 
to  scheme  and  electioneer,  to  form  log-rolling  combinations 
of  interests  and  make  appointments  favorable  to  the  political 
powers,  in  order  to  pave  the  way  for  his  reelection.  These 
schemes,  it  was  feared,  would  so  distract  his  attention  as  to 
divert  it  from  the  proper  consideration  of  his  legitimate  of- 
ficial duties.^"  Undoubtedly  there  was  and  is  some  force  to 
this  view,  but,  on  the  other  hand,  it  may  be  urged  that,  when 
the  governor  is  rendered  ineligible  to  succeed  himself,  one  of 
the  principal  incentives  to  perform  his  duties  in  an  able  and 
acceptable  manner  is  taken  away  from  him.  Furthermore, 
the  people  of  a  state  ought  not  to  be  deprived  of  the  services 
of  one  who  has  proved  himself  to  be  an  able,  experienced  and 
courageous  governor,  even  though  he  has  just  had  one  or  two 
terms  in  the  office.  The  question  really  depends  for  its  so- 
lution upon  the  further  question  as  to  whether  the  manner  of 
electing  the  governor  is  such  as  to  secure  a  real  choice  by  the 
people,  or  whether  in  reality  his  nomination  and  election  are 
dictated  by  political  managers  or  powers  unfriendly  to  the 

=*Art.  IV,  Sect.  3. 

^°  See  speech  of  Mr.  Medill  in  the  Illinois  Constitutional  Convention 
of  1870,  Debates  and  Proceedings,  i,  p.  756. 

47 


AMERICAN  STATE  ADMINISTRATION 

public  interests.  In  the  former  case,  there  is  Httle  practical 
need   for   restrictions  on   reeligibility. 

The  same  considerations  which  brought  about  the  placing 
of  restrictions  upon  reeligibility  also  caused  the  insertion  of 
provisions  disabling  the  governor  from  serving  in  any  other 
state  or  Federal  office  during  the  term  for  which  he  is  elected. 
Such  provisions  are  still  found  in  a  number  of  state  constitu- 
tions. The  courts,  however,  have  held  that  such  a  provision 
does  not  prevent  the  governor  from  serving  ex  officio  as  a 
member  of  a  state  board,  such  as  a  state  board  of  control,^^ 
or  a  state  board  of  public  works.^^ 

The  salary  of  the  governor  varies  from  $2,500  in  Ver- 
mont and  Nebraska  to  $12,000  in  Illinois,  and  in  a  number 
of  states  he  is  also  furnished  with  a  residence  at  the  state 
capital.  A  committee  of  the  New  York  Constitutional  Con- 
vention of  1915  has  proposed  that  the  governor's  salary  in 
that  state  be  raised  to  $20,000,  but  at  present  his  salary  of 
$10,000  is  less  than  that  received  by  the  judges  of  the  highest 
state  court  or  by  the  mayor  of  New  York  City.  In  the  early 
history  of  the  states,  as  we  have  seen,  the  amount  of  the  gov- 
ernor's salary  was  left  to  the  determination  of  the  legislature, 
and  the  latter  body  sometimes  threatened  to,  and  occasionally 
did,  use  this  power  either  for  the  purpose  of  bribery  or  of 
intimidation.  In  the  later  revisions  of  state  constitutions,  the 
amount  of  the  governor's  salary  frequently  was  definitely 
fixed  in  that  instrument  in  order  to  make  him  more  inde- 
pendent of  legislative  control.  That  the  governor  should  be 
independent  of  the  legislature  in  this  respect,  there  can  be 
little  question,  but  the  policy  of  definitely  fixing  the  amount 
in  the  constitution  is  open  to  question.  The  amount  having 
once  been  fixed  in  the  constitution  is  not  easily  changed, 
even  though  it  may  have  become  manifestly  inadequate, 
through  the  increased  supply  of  gold  and  other  causes  which 

''State  vs.  Potterfieid,  47  S.  C.  75   (1896). 
'^  Bridges  vs.  Shallcross,  6  W.  Va.  562  (1873). 

48 


THE  STATE  GOVERNOR 

contribute  to  the  increased  cost  of  living.  If  this  is  the  case, 
the  governor  may  have  to  serve  at  a  financial  sacrifice,  or  else 
the  constitutional  provisions  may  be  disregarded.  The  Illi- 
nois Constitution  of  1848  provided  that  the  governor  should 
receive  a  salary  of  $1,500  per  annum,  which  should  not  be 
increased  or  diminished,  while  judges  of  the  Supreme  Court 
were  allowed  a  paltry  $1,200.^^  Before  1870,  when  the  next 
revision  of  the  Illinois  Constitution  took  place,  these  salaries 
were  found  to  be  so  insufiicient  that  the  legislature  raised  the 
compensation  of  these  officers  and  all  three  departments  of 
the  government  connived  at  this  violation  of  the  Constitu- 
tion.^* In  view  of  the  difficulties  thus  disclosed,  most  of  the 
states  now  leave  the  exact  amount  of  the  governor's  salary 
to  legislative  discretion,  but  provide  in  the  constitution  that 
the  amount  shall  not  be  increased  nor  diminished  during  his 
continuance  in  office.  To  this  provision  is  also  often  added 
the  further  provision  that  the  governor  shall  not  receive  to  his 
own  use  any  fees,  perquisites  or  other  compensation.^^ 

The  office  of  governor  may  become  vacant  during  the  term 
of  an  incumbent  in  various  ways,  such  as  through  impeach- 
ment by  the  legislature,  recall  by  the  voters,  absence  from 
the  state,-''^  or  other  disability.  Cases  might  occur  where  the 
disability  of  the  governor  would  be  a  matter  of  doubt,  such 
as  in  cases  of  alleged  insanity  of  a  mild  sort,  but  no  special 
method  is  provided  in  the  constitutions  for  the  determination 
of  such  a  question.  Such  a  question,  however,  could  doubt- 
less be  determined  by  the  proper  court,  upon  a  writ  of  quo 
ivarranto,  when  the  person,  designated  by  law  as  the  gover- 
nor's successor  in  case  of  disability,  should  attempt  to  take 
possession  of  the  office.    This  method,  however,  would  prob- 

'^  Illinois  Constitution  1848,  Art.  IV,  Sect.  5. 

^*  Debates  and  Proceedings  of  the  Illinois  Constitutional  Convention 
of  i8yo,  i,  pp.  804-808. 
'^  See,  for  example,  Illinois  Constitution,  Art.  V,  Sect.  23. 
"State  ex  rel.  Warmoth  vs.  Graham,  26  La.  Ann.  568  (1874). 

49 


AMERICAN  STATE  ADMINISTRATION 

ably  not  prove  to  be  the  most  expeditious  method  of  settling 
the  matter.  There  was  formerly  some  sentiment  in  favor  of 
electing  the  governor's  successor  by  popular  vote,  particularly 
if  the  vacancy  should  occur  during  the  first  part  of  his  term,'^ 
but,  at  present,  this  procedure  is  followed  only  in  case  of 
the  recall."^  In  other  cases  of  a  vacancy  in  the  governor's 
office,  a  particular  officer  is  designated  by  the  constitution  or 
statute  as  his  successor  to  fill  out  the  remainder  of  the  un- 
expired term.  In  most  states  this  officer  is  the  lieutenant- 
governor,  and,  if  the  latter  officer  should  in  turn  become  in- 
capacitated, the  president  of  the  senate  and  speaker  of  the 
house  usually  succeed  in  order.  These  officers  usually  suc- 
ceed immediately  after  the  governor  in  those  states  where 
there  is  no  lieutenant-governor.  In  cases  of  impeachment, 
the  succeeding  officer  begins  to  act  as  governor  when  the 
house  of  representatives  brings  in  the  original  bill  of  accu- 
sation, and,  if  the  impeachment  is  successful  before  the  sen- 
ate, he  continues  for  the  remainder  of  the  term.^^ 


REFERENCES  AND  COLLATERAL  READING 

Dealey,  J.  Q.     Growth  of  American  State  Constitutions,  pp.  36-7; 

160-161, 
Dougherty,  J.  H.     Constitutional  History  of  the  State  of  New 

York.     (2nd  ed.) 
Fairlie,  J.  A.    "The  State  Governor,"  Michigan  Law  Review,  x 

(1912). 
FiNLEY,  J,  H.  and  Sanderson,  J.  F.    American  Executive  and 

Executive  Methods,  Chs.  I,  II,  III. 
Greene,  E.   B.     The  Provincial  Governor. 
Hitchcock,  H.    American  State  Constitutions. 

"  See  Debates  and  Proceedings  of  the  Kentucky  Constitutional  Con- 
vention of  1849,  p.  730. 

*"  See  below,  Ch.  VIII. 

**  People  ex  rel.  Robin  vs.  Hayes,  143  N.  Y.  Supp.  325,  (1913)  ;  in  re 
Opinion  of  Judges,  3  Neb.,  463  (1872). 

50 


THE  STATE  GOVERNOR 

Johnson,  A.  Readings  in  American  Cotistitutional  History,  Chs. 
Ill,  IV,  VIII,  XL. 

Kaye,  p.  L.  "Colonial  Executive  Prior  to  the  Restoration,"  Johns 
Hopkins  Studies,  xviii. 

MoREY,  W.  C.  "First  State  Constitutions,"  Annals  of  the  Ameri- 
can Academy,  iv,  p.  225. 

ScHOULER,  J.     Constitutional  Studies,  pp.  58-64;  267-273. 

Thorpe,  F.  N.  "Recent  Constitution  Making,"  Annals  of  the 
American  Academy,  ii,  p.  160. 

Webster,  W.  C.  "State  Constitutions  of  the  Revolution,"  Annals 
of  the  American  Academy,  ix,  p.  380. 


CHAPTER  III 
THE  GOVERNOR'S  LEGISLATIVE  POWERS 

Powers  of  the  Governor  in  General. — Although  the  governor 
is  nominally  the  chief  executive  authority  in  the  state  gov- 
ernment, he  nevertheless  participates  in  both  of  the  two  main 
functions  of  government,  viz.,  the  formulation  and  the  exe- 
cution of  pubHc  policy,  and,  as  will  be  seen  later,  his  influence 
in  connection  with  the  former  function  is  frequently  of  even 
greater  importance  than  with  the  latter.  The  laying  down 
of  general  rules  and  the  determination  of  broad  general 
questions  of  public  policy  rests,  in  legal  contemplation,  pri- 
marily with  the  legislative  body,  within  the  limits  of  the  Con- 
stitution. As  a  matter  of  practical  politics,  however,  and,  to 
some  extent,  even  through  legal  recognition,  the  governor  fre- 
quently influences,  to  a  considerable  extent,  the  formulation 
of  public  policies.  On  account  of  the  wide  scope  of  legis- 
lative authority  over  the  regulation  of  the  administration,  the 
executive  authority  must  have  some  share  in  the  exercise  of 
legislative  power,  if  it  is  to  have  laws  which  it  can  execute 
sympathetically.  A  proper  coordination  of  the  making  and 
the  execution  of  law  thus  requires  that  the  executive  author- 
ity should  have  some  influence  over  the  law-making  process. 
Such  sharing  of  legislative  power  by  the  executive  authority 
constitutes,  strictly  speaking,  a  departure  from  the  principle 
of  separation  of  powers.  It  was,  indeed,  formerly  opposed 
for  that  reason.  "The  legislative  power,"  said  Mr.  Wash- 
burn in  the  Illinois  Constitutional  Convention  of  1870,  "the 
power  to  inaugurate  and  mature  the  policy  of  the  state  be- 
longs exclusively  to  the  general  assembly.     It   would  be  a 

52 


THE  GOVERNOR'S  LEGISLATIVE  POWERS 

usurpation  by  the  governor  to  exercise  that  power.  The  duty 
of  the  governor  is  to  execute  the  poHcy,  not  to  say  w^hat  the 
policy  shall  be."  ^  This  view,  however,  is  no  longer  very 
widely  held,  and,  certainly,  the  principle  upon  which  it  is 
based  is  often  disregarded.  Legally,  however,  the  powers  of 
the  governor,  whether  in  determining  or  in  executing  policy, 
are  quite  strictly  construed  by  the  courts.  While  the  legisla- 
ture, as  already  noted,  is  largely  a  body  of  general  and  residu- 
ary powers,  those  of  the  chief  executive  are  confined  to  such 
as  are  granted,  either  expressly  or  by  necessary  implication, 
in  the  constitutions  or  statutes.  Even  the  doctrine  of  neces- 
sary implication  must  be  applied  with  caution.  As  a  general 
rule,  therefore,  the  governor  has  little,  if  any,  inherent  or  pre- 
rogative powers.^ 

Although  we  are  primarily  concerned  with  the  execution 
rather  than  with  the  formulation  of  public  policies,  neverthe- 
less these  two  functions  are  so  closely  connected  and  the  in- 
teraction between  them  is  so  constant  and  all-pervading  that 
we  cannot  profitably  consider  one  without  some  reference  to 
the  other.  We  are  not  at  this  time  concerned,  however,  with 
all  the  processes  of  legislation  nor  with  the  purely  judicial 
side  of  administration,  but  only  with  executive  administra- 
tion and  with  that  side  of  legislation  which  affects,  or  is  af- 
fected by,  executive  authorities.  Although,  for  practical 
purposes,  law  is  sometimes  made  at  the  time  of,  and  in  the 
very  act  of,  its  execution,  yet,  in  general,  it  is  true  that  the 
law  must  first  be  made  and  known  before  it  can  be  executed. 
We  will  therefore  consider  the  legislative  powers  of  the  gov- 
ernor before  taking  up  his  control  over  the  execution  of  the 
law. 

Legislative  Powers  of  the  Governor. — The  influence  or  con- 
trol which  the  governor  wields  over  the  formulation  of  public 
policy  may  be  considered  under  two  main  heads,  viz. :  that 

^Debates  and  Proceedings,  i,  p.  759.     (Italics  are  the  author's.) 
'Richardson  vs.  Young,   122  Tenn.,  471    (1910). 

53 


AMERICAN  STATE  ADMINISTRATION 

which  is  legal,  and  that  which  is  extra-legal.  The  legal  side 
of  his  legislative  powers  may  in  turn  be  divided  into  three 
classes,  viz. :  first,  power  over  the  organization  and  sessions 
of  the  legislative  body  proper;  secondly,  power  of  coopera- 
tion with  the  legislature  as  a  component  part  of  the  regular 
law-making  power;  and,  thirdly,  power  of  subsidiary  legisla- 
tion in  pursuance  of,  or  supplemental  to,  previously  existing 
constitutional  or  statutory  provisions. 

The  control  exercised  by  the  governor  over  the  organiza- 
tion of  the  legislature  is  very  slight.  It  has  been  suggested 
that,  in  case  of  a  contest  between  two  bodies,  each  claiming 
to  be  the  legally  elected  legislature,  the  governor  may  deter- 
mine the  question  of  legaHty  by  recognizing  one  of  these 
bodies  and  participating  with  it  in  legislation.  But  the  gover- 
nor probably  does  not  possess  such  a  power.^  A  member  of 
the  legislature  who  resigns  usually  sends  his  resignation  to 
the  governor,  and,  where  a  vacancy  in  the  membership  of  the 
legislature  occurs  in  this  or  in  some  other  way,  the  governor 
in  most  states  possesses  the  power  or  duty  of  issuing  a  writ 
commanding  the  proper  officials  to  hold  a  special  election  to 
fill  the  vacancy. 

The  governor  has  no  control  over  the  time  for  beginning  a 
regular  legislative  session,  as  this  is  determined  by  the  consti- 
tution, nor  over  the  time  of  adjournment  of  either  a  regular 
or  special  session,  unless  there  is  a  disagreement  between  the 
two  houses.  In  parliamentary  law,  the  term  "disagreement" 
denotes  an  impasse  reached  by  the  two  houses  through  suc- 
cessive unsuccessful  attempts  at  agreement.  If  such  a  dis- 
agreement exists,  the  fact  is  brought  to  the  governor's  atten- 
tion by  an  official  certificate  from  the  presiding  officer  of  one 
or  both  houses  to  that  effect,  or  else  he  takes  cognizance  of 
the  fact  without  formal  notification  and  adjourns  the  two 
houses  to  such  time  as  he  thinks  proper,  not  beyond  the  first 

*J.    D.    Barnett,    "The   Executive    Control   of   the   Legislature,"   41 
American  Law  Review,  236. 

54 


THE  GOVERNOR'S  LEGISLATIVE  POWERS 

day  of  the  next  regular  session.*  In  a  number  of  states,  the 
governor  may  on  extraordinary  occasions,  such  as  in  time  of 
disease  or  uprising,  convene  the  legislature  at  some  place 
other  than  the  seat  of  government  provided  it  is  not  outside 
the  state  nor  almost  wholly  inaccessible.  Although  the  rea- 
son for  taking  such  action  is  usually  specified  in  the  constitu- 
tion, nevertheless  the  governor  is  the  final  judge  as  to 
whether  the  emergency  exists  which  justifies  his  action. 
This  power  may,  as  a  rule,  however,  be  exercised  by  the  gov- 
ernor only  during  the  recess  of  the  legislature,  for,  if  the  lat- 
ter body  is  in  session,  it  may  itself  take  appropriate  action  in 
such  an  emergency.^  It  is  seldom,  however,  that  an  occasion 
arises  for  the  exercise  by  the  governor  of  his  power  either 
of  adjournment  of  the  legislature,  or  of  changing  the  place 
of  its  sessions. 

Of  more  importance  is  the  governor's  power  of  convening 
the  legislature  in  special  session  on  extraordinary  occasions. 
In  some  states  he  may  also  convene  the  senate  alone  in  special 
session  for  the  confirmation  of  appointments.  The  final  de- 
termination of  the  necessity  for  a  special  session  rests  with 
the  governor,  and  even  though  he  might  be  mistaken  in  his 
judgment  that  extraordinary  circumstances  rendered  it  desir- 
able that  the  legislature  should  be  called  in  special  session, 
nevertheless  this  would  not  have  the  effect  of  invalidating  the 
laws  enacted  at  such  session.  In  the  Virginias  the  governor 
is  required  by  the  constitution  to  call  a  special  session  when 
requested  to  do  so  by  a  certain  extraordinary  majority  of  the 
members  of  the  legislature,  but  it  is  doubtful  whether  he 
could  legally  be  compelled  to  act  in  accordance  with  this  pro- 
vision.* 

*  See  Illinois  Constitution,  Art.  V,  Sect.  9;  People  vs.  Hatch,  23  Ill-> 
9  i^^(^3)  ;  and  Debates  and  Proceedings  of  the  Illinois  Constitutional 
Convention  of  i8/'o,  i,  p.  776. 

"Taylor  vs.  Beckham,  108  Ky.  278  (1900). 

*  Constitution  of  Virginia,  Art.  V,  Sect.  73 ;  Constitution  of  West 
Virginia,  Art.  VI,  Sect.  19. 

55 


AMERICAN  STATE  ADMINISTRATION 

The  governor  convenes  the  legislature  in  special  session 
through  the  issuance  of  a  proclamation,  in  which  he  is  usually 
required  to  state  the  purposes  for  which  the  legislature  is 
called  together.  The  importance  of  this  function  from  the 
standpoint  of  the  governor's  control  over  legislation  is  that, 
in  about  half  the  states,  the  legislation  at  such  session  is  lim- 
ited to  such  matters  as  the  governor  includes  in  his  call,  or 
submits  to  the  legislature  after  its  organization.  Even  in 
these  states,  however,  there  are  certain  general  limitations 
upon  the  governor's  control  of  the  action  of  the  legislature  in 
special  session.  In  the  first  place,  the  restriction  upon  the 
action  of  the  legislature  is  confined  to  legislative  acts,  and  does 
not  apply  to  acts  which  are  executive  or  judicial  in  character, 
such  as  confirmation  of  appointments  and  impeachment.  Nat- 
urally, it  is  hardly  to  be  expected  that  a  governor  would  recom- 
mend his  own  impeachment,  yet  Governor  Sulzer  of  New  York 
was  impeached  at  a  special  session  of  the  legislature  in  spite 
of  the  constitutional  prohibition  that  "at  extraordinary  ses- 
sions no  subject  shall  be  acted  upon,  except  such  as  the  gov- 
ernor may  recommend  for  consideration."  '^  The  Supreme 
Court  of  New  York  upheld  the  impeachment  on  the  ground 
that  the  exercise  of  the  power  of  impeachment  is  a  judicial 
and  not  a  legislative  act.^  In  the  second  place,  the  governor 
cannot  control  the  details  of  legislation,  but  only  the  general 
subjects  or  topics.  It  remains  within  legislative  discretion  to 
select  the  detailed  means  whereby  such  subjects  may  be  pro- 
vided for.  Furthermore,  in  some  states,  as  in  Alabama,  the 
legislature  may,  by  extraordinary  majority  vote,  legislate  upon 
subjects  other  than  those  designated  in  the  proclamation  of 
the  governor.^  Again,  after  issuing  his  proclamation  and 
therein  limiting  the  legislature  to  certain  subjects  of  legisla- 
tion, the  governor  himself  cannot,  as  a  general  rule,  subse- 

'  Constitution  of  New  York,  Art.  IV,  Sect.  4. 

"People  ex  rel.  Robin  vs.  Hayes,  143  N.  Y.  Supp.,  325  (1913). 

'  Constitution  of  Alabama,  Art.  IV,  Sect.  76. 

'  56 


THE  GOVERNOR'S  LEGISLATIVE  POWERS 

quently  broaden  the  scope  of  legislation  by  approving  bills  re- 
lating to  subjects  other  than  those  included  in  his  original 
call.  The  governor  of  Illinois  called  a  special  session  in  191 1, 
enumerating  certain  subjects  for  legislative  consideration. 
Subsequently,  while  this  session  was  still  in  existence,  other 
matters  came  up  requiring  legislative  action,  and  the  gover- 
nor thereupon  called  another  special  session  for  their  consid- 
eration, so  that  there  were  two  simultaneous  special  sessions. 
In  order  to  avoid  resort  to  such  an  evasion  of  the  constitution, 
it  would  be  better  to  provide  in  that  instrument,  as  is  done  in 
Florida,  Mississippi,  Montana,  Nevada  and  Utah,  that  the  leg- 
islature shall  be  limited  to  action  upon  matters  contained  in 
the  governor's  call,  or  submitted  by  him  during  the  session. 
Since  the  tendency  in  recent  years  has  been  to  decrease  the 
frequency  of  regular  legislative  sessions,  the  need  and  fre- 
quency of  special  sessions  has  been  on  the  increase.  This 
development  has  strengthened  the  control  and  leadership  of 
the  governor  in  legislation,  for  in  a  special  session  there  is 
less  opportunity  for  evading  responsibility  for  the  enactment 
of  needed  legislation.  The  attention  both  of  the  legislature 
and  of  the  public  is  concentrated  to  a  greater  extent  upon  the 
subjects  brought  forward  by  the  governor. 

The  governor's  legal  powers  of  participation  in  law-making 
are  exercised  principally  through  the  sending  of  messages  and 
recommendations  to  the  legislative  body  proper,  at  either  a 
regular  or  special  session,  and  through  the  approval  and  veto 
of  its  acts.  Although  the  governor  may  be  considered  as  a 
component  part  of  the  law-making  power,  nevertheless,  in  def- 
erence to  the  doctrine  of  separation  of  powers,  he  is  not  ac- 
corded a  seat  upon  the  floor  of  the  legislature,  nor  is  it  cus- 
tomary for  him  to  address  that  body  in  person.  In  submitting 
his  views  on  public  questions  to  the  legislative  body  as  a 
whole,  he  is  therefore  confined  to  the  submission  of  messages 
and  recommendations  in  writing.  This  he  is  required  to  do 
at  the  opening  of  legislative  sessions,  and  in  some  states  also 

57 


AMERICAN  STATE  ADMINISTRATION 

at  the  end  of  his  term.  He  may,  in  addition,  send  special  mes- 
sages at  any  time  during  the  session.  In  these  messages,  both 
regular  and  special,  he  gives  the  legislature  "information  as  to 
the  condition  of  the  state,  and  recommends  such  measures  as 
he  shall  deem  expedient."  ^°  The  term  "measures,"  as  here 
used,  does  not  legally  preclude  the  governor  from  submitting 
his  recommendations  in  the  form  of  completely  drafted 
bills.^^  This,  however,  is  almost  never  done,  for,  however 
beneficial  such  a  practice  might  be  upon  the  character  of  the 
legislative  product,  it  would  probably  be  denounced  as  a 
violation  of  the  principle  of  separation  of  powers,  and  as  an 
encroachment  upon  the  legitimate  functions  of  the  legislative 
body  proper,  and  would  therefore  cause  needless  friction  be- 
tween the  legislative  and  executive  departments  of  the  govern- 
ment. In  Alabama,  however,  the  governor,  acting  jointly  with 
the  state  auditor  and  attorney-general,  is  required,  before  each 
regular  session  of  the  legislature,  to  prepare  a  general  revenue 
bill  and  submit  it  to  the  legislature  for  its  information.^^  The 
message  of  the  governor  at  the  opening  of  regular  sessions 
usually  gives  prominence  to  a  statement  of  the  financial  condi- 
tion of  the  state.  In  a  number  of  states,  including  Illinois, 
Missouri,  Nebraska  and  Texas,  he  is  specifically  required  to 
accompany  his  message  with  a  statement  of  all  moneys  re- 
ceived and  paid  out  by  him  from  any  funds  subject  to  his 
order,  and,  at  the  commencement  of  each  regular  session,  to 
present  estimates  of  the  amount  of  money  required  to  be 
raised  by  taxation  for  all  purposes.^^  In  some  of  these  states, 
however,  it  should  be  added,  this  mandate  is  seldom  fully  com- 
plied with.     In  order  to  increase  the  governor's  influence  over 


"  Constitution  of  Illinois,  Art.  V,  Sect.  7. 

"Address  of  Governor  Woodrow  Wilson  of  New  Jersey  before  the 
House  of  Governors,  Frankfort,  Kentucky,  November  29,  1910. 

"  Constitution  of  Alabama,  Art.  IV,  Sect.  70. 

"  Constitution  of  Illinois,  Art.  V,  Sect.  7.  A  Vermont  act  of  1915, 
No.  26,  creates  a  committee  on  the  budget,  composed  of  governor 
and  state  officers. 

58 


THE  GOVERNOR'S  LEGISLATIVE  POWERS 

financial  legislation,  it  might  be  well  to  broaden  this  provision 
so  as  to  authorize  the  governor  specifically  to  transmit  to  the 
legislature  a  statement  both  of  anticipated  revenues  and  of 
appropriations  recommended  by  the  executive  for  all  purposes. 
In  any  case,  however,  such  recommendations  of  whatever  char- 
acter have  legally  no  binding  force  upon  the  legislature,  and 
are  therefore  merely  advisory.  They  do  not  impair  the  power 
of  the  legislature  to  make  appropriations.^* 

In  a  few  special  cases,  the  governor  is  able,  through  the 
exercise  of  his  message  power,  to  interpose  more  directly  in 
the  actual  process  of  legislation.  In  New  York,  for  example, 
the  governor,  by  special  emergency  message,  may  dispense  with 
the  constitutional  requirement  that  all  bills  shall  be  printed  and 
upon  the  desks  of  members  at  least  three  days  before  final 
passage.^^  The  governor  of  Nebraska  may,  by  special  mes- 
sage, dispense  with  the  constitutional  requirement  that  no  bills, 
except  general  appropriation  bills,  may  be  introduced  after  the 
expiration  of  the  first  twenty  days  of  the  legislative  session.^^ 
In  Maryland  the  legislature  is  prohibited  to  pass  local  and 
special  laws  in  certain  cases  unless  recommended  by  the  gover- 
nor or  officers  of  the  treasury  department.^^ 

The  action  of  the  governor  as  a  component  part  of  the  law- 
making power  at  the  final  stage  of  the  legislative  process  is 
definitely  provided  for  in  all  states  except  North  Carohna 
through  the  requirement  that  every  bill  which  has  passed  the 
two  branches  of  the  legislative  body  proper  must  be  submitted 
to  the  governor  for  his  approval  or  disapproval.  In  some  states 
resolutions  also  must  be  submitted  to  the  governor,  but  this 
does  not  include  such  resolutions  as  those  relating  to  adjourn- 

"/n  re  Opinion  of  Justices  (Mass.,  1911),  94  N.  E.,  852.  The  gov- 
ernor is  authorized  to  prepare  budget  in  Minnesota  (Laws  1915,  Ch. 
356)  and  Nebraska  (Laws,  1915,  Ch.  229). 

"  Constitution  of  New  York,  Art.  Ill,  Sect.  15.  The  constitutional 
convention  of  1915  proposed  to  aboHsh  this  power. 

"  Constitution  of  Nebraska,  Art.  Ill,  Sect.  4. 

"  Constitution  of  Maryland,  Art.  Ill,  Sect.  2>Z- 

59 


AMERICAN  STATE  ADMINISTRATION 

ment  or  rules  of  procedure,  to  constitutional  amendments  or 
measures  submitted  to  popular  referendum,  which  do  not,  as  a 
rule,  go  to  the  governor.  The  time  allowed  the  governor  while 
the  legislature  is  in  session,  to  consider  a  bill  before  taking 
action  upon  it,  varies  from  three  to  ten  days.  If  the  governor 
fails  to  take  action  upon  the  bill  within  the  specified  period,  it 
becomes  a  law,  unless  the  legislature  previously  adjourns,  in 
which  case  the  governor  may  usually  either  approve  the  bill  or 
exercise  what  is  known  as  his  "pocket  veto."  The  period 
allowed  the  governor  for  consideration  of  measures  after  ad- 
journment tends  to  be  longer  than  that  allowed  while  the  legis- 
lature is  in  session,  and,  in  view  of  the  great  mass  of  legisla- 
tion usually  left  over  at  the  end  of  the  session  and  the  great 
responsibility  for  the  careful  sifting  of  measures  thus  placed 
on  the  shoulders  of  the  governor,  the  period  allowed  him  for 
consideration  after  adjournment  should  be  still  further  length- 
ened. In  New  York  and  California  no  bill  becomes  a  law 
after  the  final  adjournment  of  the  legislature  unless  approved 
by  the  governor  within  thirty  days  after  such  adjournment.^' 
In  a  number  of  other  states,  including  Illinois  and  Pennsyl- 
vania, the  governor  may,  for  a  specified  period  after  the  ad- 
journment of  the  legislature,  prevent  a  bill  from  becoming  a 
law  by  filing  it  with  his  objections  in  the  office  of  the  secretary 
of  state.^^  The  power  of  the  governor  to  veto  bills  after  the 
adjournment  and  even  during  the  last  few  days  of  the  legisla- 
tive session  is  especially  important,  as  it  then  becomes  practi- 
cally impossible  to  repass  the  measure  over  his  veto.  It  is  fre- 
quently the  custom  in  legislative  bodies  to  rush  through  im- 
portant measures,  particularly  appropriation  bills,  during  the 
last  few  days  of  the  session,  and  over  these  measures  the  gov- 
ernor is  therefore  able  to  exercise  what  is  virtually  an  abso- 
lute veto.     Indeed,  to  such  an  extent  has  this  tendency  some- 

"  Constitution  of  New  York,  Art.  IV,  Sect.  9;  Constitution  of  Cali- 
fornia, Art.  IV,  Sect.  16. 
*'  Constitution  of   Illinois,  Art.  V,  Sect.   16, 

60 


THE  GOVERNOR'S  LEGISLATIVE  POWERS 

times  gone  that  the  real  work  of  legislation  may  be  said  to 
begin  after  the  adjournment  of  the  legislature.^" 

In  the  national  government  the  veto  power  of  the  president 
has  sometimes  been  crippled  through  the  attachment  by  Con- 
gress of  "riders"  or  extraneous  matter  to  appropriation  bills. 
Profiting  from  this  experience,  as  well  as  from  similar  prac- 
tices in  the  states  themselves,  thirty-four  states  now  allow  the 
governor  to  veto  items  in  appropriation  bills,  and  three  of 
these  also  allow  him  specifically  to  disapprove  sections  of  any 
bill."  In  many  states,  however,  having  no  specific  grant  of 
power  to  the  governor  to  veto  parts  of  bills  other  than  appro- 
priation bills,  the  same  result  is  frequently  reached  through 
the  operation  of  the  provision  generally  found  in  state  consti- 
tutions that  no  bill,  except  general  appropriation  bills,  shall 
embrace  more  than  one  subject,  which  shall  be  plainly  ex- 
pressed in  the  title.^^  The  term  "item,"  however,  is  narrower 
than  the  term  "subject,"  and  embraces  any  part  of  a  bill  which 
is  sufBciently  distinct  that  it  may  be  separated  without  serious 
damage  to  the  essential  force  of  the  residue.  The  power  of 
the  governor  to  veto  items  of  appropriation  bills  is  of  especial 
importance  as  giving  him  considerable  influence,  not  only  over 
legislation,  but  also  over  the  entire  range  of  state  administra- 
tion. This  power  would  obviously  be  much  increased  if  the 
governor  were  able  not  only  to  veto  an  item  but  also  to  reduce 
the  amount  of  a  specific  appropriation.  The  governor  may 
approve  the  object  of  an  appropriation  but  consider  that  the 
amount  is  out  of  proportion  to  the  requirements  of  the  case, 
or  beyond  the  prudent  use  of  the  public  funds.  Under  these 
circumstances    he   is   nevertheless    forced   either   to    approve 


'"  P.  S.  Reinsch,  American  Legislatures  and  Legislative  Methods,  p. 
284. 

^  South  Carolina,  Washington  and  Virginia. 

^^  Cf.  Joseph  Barthelemy,  Le  Role  du  Pouvoir  Exccutif  dans  les  Re- 
publiques  Modcrnes,  p.  70;  and  remarks  of  Mr.  Barbour  in  Virginia 
Constitutional  Convention   of  igoi-2.  Proceedings  and  Debates,  ii,  p. 

1875. 

61 


AMERICAN  STATE  ADMINISTRATION 

or  disapprove  the  whole  amount.  In  Pennsylvania,  however, 
although  there  is  no  express  constitutional  authorization,  the 
Supreme  Court  has  held  that  the  governor  may  veto  part  of 
a  specific  appropriation,  and  the  governors  of  that  state  have 
frequently  availed  themselves  of  this  power.-^  The  power  of 
reducing  items  has  also  been  exercised,  without  express  au- 
thorization, by  the  governors  of  Illinois,  Oklahoma,  Idaho, 
Maryland,  and  other  states.  In  Illinois  and  Oklahoma,  how- 
ever, this  practice  has  recently  been  checked  by  decisions  of 
the  supreme  courts  of  those  states.^*  In  the  IlHnois  case,  it 
was  held  that  "the  power  of  the  governor  to  veto  any  distinct 
item  or  section  in  an  appropriation  bill  does  not  give  him  the 
power  to  disapprove  of  a  part  of  a  distinct  item  and  approve 
the  remainder,  and  if  he  vetoes  part  of  an  item  by  striking  out 
the  words  'per  annum,'  or  by  approving  a  part  of  the  amount 
of  one  item  and  disapproving  the  remainder,  his  action  is  void 
and  the  whole  item  remains  in  force  as  passed  by  the  legisla- 
ture." It  is  probable,  however,  that  the  governor  could  ac- 
complish a  result  equivalent  to  the  reduction  of  items  by  re- 
fusing to  approve  vouchers  for  expenditures  beyond  what 
he  thinks  proper.  He  could  not  be  compelled  to  approve  them 
by  mandamus,  for,  in  the  exercise  of  his  power  to  approve 
vouchers  for  the  payment  of  public  moneys,  the  governor  acts 
in  an  executive  capacity,  involving  both  judgment  and  discre- 
tion. 

Governors  throughout  the  country  are  exercising  the  power 
of  vetoing  items  of  appropriation  bills  with  increasing  fre- 
quency, and  the  number  of  occasions  arising  where  the  action 
of  the  legislature  renders  the  exercise  of  this  power  neces- 
sary or  desirable  is  also  on  the  increase.     Legislatures  have 

"Commonwealth  vs.  Barnett,  199  Pa.  St.,  161   (1901). 

"Fergus  vs.  Russel,  270  III.,  304  (1915)  ;  Regents  of  the  University 
of  Oklahoma  vs.  Pratt,  28  Okla.,  83  (1911)  ;  for  discussion  of  the 
Illinois  case  see  also  Report  of  the  Attorney-General  of  Illinois,  1912, 
p.  1038. 

62 


THE  GOVERNOR'S  LEGISLATIVE  POWERS 

sometimes,  either  by  inadvertence  or  design,  placed  the  gov- 
ernor in  an  aw^kv^^ard  and  embarrassing  position  by  adjourning 
after  making  appropriations  largely  in  excess  of  the  antici- 
pated revenues  or  of  what  the  state  treasury  will  bear.  In 
order  to  preserve  the  financial  integrity  of  the  state  and  avoid 
a  deficit,  the  governor  is  then  forced  to  reduce  the  total 
amount  of  the  appropriations,  though  knowing  that  by  so  doing 
he  will  incur  the  displeasure  and  criticism  of  the  persons, 
institutions,  or  interests  who  would  otherwise  benefit  thereby. 
Through  the  exercise  of  their  power  to  veto  items  the  gov- 
ernors of  New  York,  Pennsylvania  and  Illinois  have  recently 
pared  off  millions  of  dollars  from  the  general  appropriation 
bills. 

A  power  somewhat  similar  to  that  of  vetoing  parts  of  bills, 
but  one  that  associates  the  governor  even  more  intimately 
in  the  actual  process  of  legislation,  is  that  conferred  on  him  by 
the  constitutions  of  Virginia  and  Alabama,  whereby  he  may 
propose  the  amendment  of  a  bill  with  respect  to  any  feature 
which  he  disapproves,  and  the  proposal  of  the  governor 
must  be  considered  by  the  legislature  before  final  action  on 
the  bill.  The  object  of  this  provision  is  to  prevent  needless 
friction  between  the  executive  and  the  legislature  which  may 
occur  if  the  veto  power  is  held  as  a  club  over  the  heads  of 
the  legislature.  It  is  based  upon  the  salutary  principle  that 
the  governor  and  the  legislature  should  cooperate  in  the  actual 
process  of  legislation  so  as  to  enact  laws  representing  their 
combined  wisdom  and  views.  In  a  word,  it  facilitates  con- 
ference and  agreement  between  the  governor  and  the  legisla- 
ture.^^ Governors  could  doubtless  exercise  this  power  of  sug- 
gestion in  the  absence  of  such  a  constitutional  provision,  but 
the  presence  of  the  provision  gives  greater  authority  to  the 
governor's  action,  and  disarms  any  criticism  of  executive 
usurpation  which  might   otherwise  sometimes   be  made. 

^  See  Proceedings  and  Debates  of  the  Virginia  Constitutional  Con- 
vention of  ipoi-Sj  i,  pp.  1027,  1050. 

63 


AMERICAN  STATE  ADMINISTRATION 

Except  after  adjournment  of  the  legislature,  the  governor's 
veto  is  not  absolute,  nor  is  it  arbitrary  in  character,  for  he  is 
uniformly  required,  when  disapproving  a  bill,  to  return  it  to 
the  house  in  which  it  originated  with  a  statement  of  his 
objections  to  it.  This  provision  is  designed  both  to  hold  the 
governor  to  some  accountability  for  his  acts  and  also  to 
afford  the  legislature  the  benefit  of  the  governor's  views  when 
they  come  to  reconsider  the  measure.  It  is  not  always  neces- 
sary, however,  that  he  should  specifically  object  to  each  bill 
separately,  for  in  some  states,  such  as  New  York,  it  is  cus- 
tomary for  the  governor  to  group  in  an  "omnibus  veto"  a 
number  of  measures  which  he  disapproves.  No  definite  limit 
is  set  upon  the  character  of  the  reasons  which  the  governor 
may  assign  for  a  veto,  and  they  may  relate  either  to  the  un- 
constitutionality or  the  inexpediency  of  the  proposed  meas- 
ure. There  would  seem  to  be  some  doubt,  however,  as  to 
the  propriety  of  assigning  reasons  for  the  veto  which  do  not 
pertain  to  the  merits  of  the  bill  itself.  Nevertheless,  gov- 
ernors have  occasionally  vetoed  measures  solely  on  the  ground 
that  large  sums  of  money  have  been  spent  in  promoting  their 
passage.^^ 

The  action  of  the  legislature,  upon  the  return  to  it  of  a 
vetoed  measure,  is  subject  to  certain  restrictions  which  are 
designed  both  to  secure  due  consideration  for  the  governor's 
objections  and  to  place  upon  the  members  of  the  legislature 
a  proper  sense  of  responsibility  for  their  votes.  In  New  Jer- 
sey no  action  can  be  taken  by  the  legislature  upon  the  same 
day  on  which  the  vetoed  measure  is  returned.  In  nearly  all 
the  states  the  governor's  objections  must  be  entered  at  large 
upon  the  journal  of  each  house,  and  in  most  states  the  vote 
on  repassage  must  be  by  yeas  and  nays  and  the  names  of  the 
members  voting  for  or  against  the  repassage  of  the  bill  must 


'"  See  J.  H.  Benton,  Jr. :  The  Veto  Power  in  the  United  States  (Bos- 
ton, 1888),  pp.  I-IO, 

64 


THE  GOVERNOR'S  LEGISLATIVE  POWERS 

also  be  entered  upon  the  journals. ^^  The  most  important  re- 
striction upon  legislative  action,  however,  is  the  requirement 
in  most  states  of  an  extraordinary  majority  vote  for  re- 
passage  over  the  governor's  veto.  Thirty-four  states  follow 
the  Federal  Constitution  in  requiring  a  two-thirds  vote,  while 
in  five  others  a  three-fifths  vote  is  specified.  In  the  remaining 
eight  states  a  mere  majority  vote  is  sufficient.  In  taking  the 
vote  some  states  require  merely  the  specified  majority  of  the 
members  present.  Even  a  vote  of  two-thirds  of  the  members 
present  might,  in  many  instances,  be  less  than  a  majority  of 
all  the  members  elected,  and,  under  this  provision,  a  bill 
might  be  repassed  over  the  governor's  veto  by  a  smaller  vote 
than  it  received  in  the  first  instance.  This  is  the  case  in  Con- 
necticut, which  requires  merely  a  majority  of  the  members 
present  and  has  the  weakest  veto  to  be  found  in  any  of  the 
states.  The  better  and  more  usual  practice  is  to  require  a 
specified  majority  of  the  members  elected  to  each  house  in 
order  to  override  the  governor's  veto.-^  The  natural  pride 
of  opinion  of  the  members  of  the  legislature  will  tend  to  in- 
duce them  to  repass  a  vetoed  bill  by  about  the  same  vote  as 
in  the  first  instance.  The  mere  fact,  however,  that  a  bill 
requires  for  its  original  passage  a  majority  equal  to  that  neces- 
sary for  its  repassage  over  the  veto  does  not  absolve  the  legis- 
lature from  the  necessity  of  repassing  it,  if  it  is  to  become  a 
law,^^  for  a  sufficient  number  of  votes  may  be,  and  sometimes 

"  See  The  Veto  Power  in  the  Several  States,  Bulletin  No.  I  of  the 
Rhode  Island  Legislative  Reference  Bureau. 

"  Other  methods  which  have  been  suggested  from  time  to  time  for 
dealing  with  the  executive  veto  in  legislation  include  proposals  to  refer 
the  matter  to  the  people  so  that  a  vetoed  bill  shall  not  become  a  law 
unless  ratified  by  popular  vote  at  the  next  general  election  (Debates 
and  Proceedings  of  the  Ohio  Constitutional  Convention  of  i8§o,  p.  55)  ; 
and  that  a  vetoed  bill  shall  not  become  a  law  unless  repassed  by  the 
legislature  at  the  next  succeeding  session  (Debates  and  Proceedings  of 
the  Illinois  Constitutional  Convention  of  iS/o,  ii,  p.  1376). 

"  In  some  states,  however,  the  legislature  is  not  required,  in  this  case, 
to  repass  it. 

65 


AMERICAN  STATE  ADMINISTRATION 

are,  changed  through  the  force  of  the  governor's  arguments 
to  prevent  its  repassage.  The  governor's  veto  is,  in  fact,  not 
often  overridden,  particularly  if  the  governor  is  in  political 
harmony  with  the  majority  of  the  legislature  or  if  there  is  not 
an  overwhelming  public  sentiment  in  favor  of  the  enactment 
of  the  measure. 

The  veto  power  has  probably  been  freely  exercised  by  the 
majority  of  governors,  and,  during  the  nineteenth  century, 
the  frequency  of  a  governor's  vetoes  was  the  principal  gauge 
of  his  popularity.  The  extent  of  the  governor's  negative  in- 
fluence over  legislation,  however,  is  not  to  be  measured 
merely  by  the  actual  number  of  his  vetoes,  for,  although  it  is 
not  usually  considered  good  legislative  ethics  to  argue  against 
a  bill  on  the  ground  that  the  governor  will  veto  it  if  passed, 
nevertheless  the  governor's  attitude  towards  pending  legisla- 
tion is  often  a  matter  of  common  knowledge,  and  such  knowl- 
edge may  cause  a  bill  to  be  modified  or  prevent  its  passage 
altogether.  Political  harmony  between  the  legislative  and  ex- 
ecutive branches,  as  well  as  subserviency  of  the  governor  to 
the  legislature,  may  decrease  the  number  of  bills  actually 
vetoed. 

The  value  of  the  executive  veto  from  the  standpoint  of  its 
influence  upon  the  character  of  legislation  can  scarcely  be 
doubted.  Legislatures  sometimes  pass  bills  containing  pro- 
visions which  duplicate  or,  worse  still,  contradict  provisions 
in  the  same  or  some  other  bill.  The  contradictions  may  be 
harmonized  by  judicial  interpretation,  but,  meanwhile,  the  law 
is  uncertain,  and  the  best  interests  of  the  state  require  that 
it  be  vetoed.  One  of  the  principal  uses  of  the  executive  veto 
is  thus  to  give  unity  and  coherency  to  the  legislative  product. 
"The  oftener  a  measure  is  brought  under  examination,"  said 
Hamilton,  "and  the  greater  the  diversity  in  the  situations  of 
those  who  are  to  examine  it,  the  less  must  be  the  danger  of 
those  errors  which  flow  from  want  of  due  deliberation,  or 
of  those  missteps  which  proceed  from  the  contagion  of  some 

66 


THE  GOVERNOR'S  LEGISLATIVE  POWERS 

common  passion  or  interest."  ^^  Special  and  local  interests 
doubtless  need  representation,  but,  on  account  of  the  system 
of  logrolling  in  the  legislature,  the  passage  of  bills  favoring 
such  interests  has  in  some  states  been  entirely  too  frequent 
and  the  practice  requires  the  application  of  some  corrective 
influence.  This  influence  is  found  in  the  veto  of  the  gov- 
ernor, who  represents  the  whole  people  and  therefore  the 
general  interests  of  the  state.  In  case  of  the  governor,  more- 
over, responsibility  for  legislation  is  concentrated  on  one  man, 
while  in  the  legislature  it  is  diffused.  "If  the  governor,"  de- 
clared Mr.  Archer  in  the  Illinois  Constitutional  Convention 
of  1847,  "permits  a  bill  to  become  law  which  is  wrong  and 
unconstitutional,  the  whole  responsibility  to  the  people  for 
such  an  act  rests  upon  his  head,  and  there  only.  But  how 
different  when  the  legislature  may  pass  an  act  of  this  kind, 
for  what  is  the  responsibility  when  divided  among  one  hun- 
dred men?  ...  To  whom  do  the  people  look  for  protection 
against  all  the  evils  of  local  legislation?  They  look,  sir,  to 
the  governor.  They  call  upon  him  to  avert  the  evil  by  the 
interposition  of  the  power  they  have  vested  in  him.  They 
say  to  him,  our  representatives  have  betrayed  the  trust  we 
have  reposed  in  them,  they  are  about  to  bring  upon  us  the 
accumulated  evils  of  local  legislation,  and  we  look  to  you, 
as  the  representative  of  the  whole  people  of  the  state  and 
of  all  its  great  interests,  to  check  it  by  your  constitutional 
power."  ^^ 

The  governor's  power  of  subsidiary  legislation  in  pursu- 
ance of,  or  supplemental  to,  previously  existing  constitutional 
or  statutory  provisions  is  confined  within  narrow  limits.  This 
power  is  exercised  by  means  of  executive  ordinances  or  regu- 

"  The  Federalist,  No.  73   (Ford's  edition),  p.  491. 

"Illinois  State  Register  (Springfield),  July  20,  1847,  i.,  No.  18.  Cf. 
also  Debates  and  Proceedings  of  the  Illinois  Constitutional  Convention 
of  1870,  ii.,  p.  12,77,  and  Debates  and  Proceedings  of  the  Ohio  Consti- 
tutional Convention  of  1830,  pp.  54,  99. 

67 


AMERICAN  STATE  ADMINISTRATION 

lations.  In  no  case  is  this  power  expressly  granted  to  the 
governor  by  the  state  constitution,  but  in  some  instances  it 
is  impHed  in  that  instrument.  Where  the  constitution  ex- 
pressly authorizes  the  governor  to  exercise  a  power,  he  has 
the  authority,  inherent  in  the  power  conferred,  of  making 
regulations  necessarily  incidental  to  its  exercise.  Thus  the 
power  granted  by  the  constitution  to  the  governor  to  grant 
pardons  and  reprieves  necessarily  carries  with  it,  in  the  ab- 
sence of  any  express  restriction,  the  power  of  regulating  the 
method  of  applying  for  and  of  passing  upon  applications  for 
such  pardons  or  reprieves.  The  constitution  of  Illinois  gives 
the  governor  the  right  to  exercise  the  pardoning  power  "sub- 
ject to  such  regulations  as  may  be  provided  by  law  relative 
to  the  manner  of  applying  therefor."  ^^  The  obvious  infer- 
ence from  this  provision  is  that  the  governor  has  the  power 
to  make  any  regulations  incidental  to  the  pardoning  power 
that  do  not  relate  to  the  manner  of  applying  for  pardons. 
The  more  usual  instance,  however,  of  the  exercise  by  the 
governor  of  the  power  to  issue  regulations  is  in  pursuance  of 
legislative  authorization.  The  legislature  of  Massachusetts 
conferred  upon  the  governor  and  council  the  power  to  make 
pilotage  regulations.^^  This  delegation  of  power  was  upheld 
by  the  supreme  court  of  the  state  on  the  ground  that  "such 
regulations  are  in  the  nature  of  police  regulations,  the  making 
of  which,  within  defined  limits,  may  be  intrusted  to  other 
bodies  than  the  legislature."  ^*  The  governor  of  Georgia  has 
been  held  to  have  power,  under  legislative  authorization,  to 
make  all  necessary  regulations  for  the  protection  of  the  prop- 
erty of  the  state  when  not  otherwise  provided  for.^^  In  a 
number  of  states  the  governor  is  authorized  by  legislative  act 
to  issue  rules  governing  admission  to  subordinate  positions  in 

"Art.  V,  Sect.  13. 

"Statutes  of  1862,  Chap.  176,  Sect.  17. 

**  Martin  vs.  Witherspoon,  135  Mass.,  175  (1883). 

"Alexander  vs.  State,  56  Ga.,  478  (1876). 

68 


THE  GOVERNOR'S  LEGISLATIVE  POWERS 

the  civil  service.  The  ordinance  power,  however,  is  not  so 
freely  granted  to  the  governor  as  it  is  to  state  boards  and 
commissions.  The  courts  frequently  declare  unconstitutional 
the  delegation  of  legislative  power  to  the  governor  as  a  viola- 
tion of  the  principle  of  separation  of  powers. ^^  A  subsidiary 
legislative  power  is  also  possessed  by  the  governor  through 
the  influence  which  he  exerts  over  the  actual  character  of  a 
law  in  the  supervision  of  its  execution.  Although,  as  will 
be  seen,  the  powers  of  the  governor  in  enforcing  the  law 
are  not  very  broad,  yet  within  the  limits  of  his  powers  he 
may  enforce  or  supervise  the  enforcement  of  a  law  in  either 
a  lax  or  a  rigorous  manner,  and  thus  possibly  in  a  material 
way  modify  the  actual  character  of  the  law.^^  The  governor 
thus  in  effect  becomes  to  some  extent  a  subordinate  legislative 
body. 

From  this  survey  of  the  governor's  legal  powers  in  legis- 
lation, it  will  be  seen  that,  although  they  are  considerable  in 
extent,  they  do  not  go  so  far  as  to  make  him  a  real  leader  in 
legislation.  Legally,  the  real  initiative  still  comes  from  the 
legislature  itself.  The  governor  may  recommend  measures, 
but  legally  his  advice  may  be  ignored.  The  governor's  veto 
power  is  equivalent  to  a  legislative  vote  of  not  less  than  one- 
half  the  legislature,  but  with  this  limitation,  that  it  may  be 
cast  only  in  the  negative.  The  exercise  of  his  merely  legal 
powers  does  not  give  the  governor  any  very  real  and  effective 
control  over  the  shaping  of  the  legislative  policy  of  the  state. 
He  can  sometimes  block  vicious  legislation,  "jokers,"  "riders," 
and  "jobs,"  but  he  has  legally  no  correlative  power  of  initi- 

"  See,  for  example,  Gilhooley  vs.  City  of  Elizabeth,  66  N.  J.  Law, 
484  (1901)  ;  and  Arnett  vs.  State,  80  N.  E.  153  (1907). 

"  It  has  even  been  held  that  the  governor  may  order  that  a  certain 
portion  of  a  law  be  disregarded  and  remain  unenforced  if,  in  his 
opinion,  it  is  unconstitutional.  State  vs.  Buchanan,  24  W.  Va.,  2^2 
(1884).  But  he  has  no  power  to  give  a  practical  interpretation  to 
laws,  in  conflict  with  legal  opinions  properly  given  by  the  judiciary. 
Ex  parte  Davis,  41   Me.,  38  (1856). 

69 


AMERICAN  STATE  ADMINISTRATION 

ating  and  pushing  through  legislation  which  is  demanded  by 
intelligent  public  opinion.  Unless  the  governor  is  given  both 
these  powers,  he  ought  not  rightfully  to  be  held  responsible 
for  the  course  that  legislation  takes.  But,  nevertheless,  the 
people  are  more  and  more  holding  him  responsible  for  the 
results  of  the  legislative  process  and  are  more  and  more  look- 
ing to  him  to  manage  and  control  the  legislature.  This  de- 
velopment is  due  in  part  to  a  growing  failure  of  legislative 
bodies  adequately  to  represent  their  constituencies  and  prop- 
erly and  efficiently  to  perform  the  functions  devolved  upon 
them,  and  in  part  to  a  natural  tendency,  both  of  the  people 
as  a  whole  and  of  the  members  of  the  legislature,  to  follow 
the  leadership  of  some  forceful  and  statesmanlike  personality. 
For  many  years  past  the  people  have  realized  that  the  state 
legislatures  have  not  represented  the  interests  of  the  whole 
state  and  of  the  whole  people  as  faithfully  as  they  have  repre- 
sented private,  special  and  local  interests.  Theoretically,  in 
order  to  remedy  this  condition  of  afifairs,  the  people  should 
hold  the  legislators  to  a  proper  responsibility  for  their  acts 
by  turning  out  of  office  those  who  have  betrayed  their  trusts.^^ 
But  in  practice  this  cannot  be  so  easily  done  for  several  rea- 
sons, among  which  is,  that,  in  the  hydra-headed  legislative 
body,  no  strikingly  prominent  figure  can  be  found  upon  whom 
responsibility  can  be  saddled.  The  course  of  legislative  pro- 
cedure is  so  confused,  vicious  legislation  may  be  railroaded 
through  in  so  many  innocent  disguises,  and  desirable  legis- 
lation may  be  emasculated,  smothered,  deprived  of  teeth,  and 
killed  in  so  many  different  ways  during  the  scuffle  and  scram- 
ble of  legislation,  that  the  people  find  it  impossible  to  fix 
the  blame  within  the  legislature.  As  has  been  so  often  ob- 
served, the  actual  process  of  legislation  has  deserted  the 
legislative  chambers,  and  now  takes  place  behind  the  vir- 
tually closed  doors   of  committee  rooms.     And  even  if  the 

"  See  "The  Constitutional  Functions  of  Executives,"  in  Bench  and 
Bar,  XX,  No.  3,  March,  1910,  p.  85  ct.  seq. 

70 


THE  GOVERNOR'S  LEGISLATIVE  POWERS 

progress  of  tlie  public  business  within  the  committee  rooms 
were  entirely  open  to  the  public  view,  the  people  would  doubt- 
less still  be  confused  by  the  multiplicity  of  committees,  each 
having  to  do  with  only  a  comparatively  small  part  of  the 
whole  field  of  legislation. 

The  public  business  thus  falls  into  a  deplorable  morass 
from  which,  under  present  conditions,  it  can  apparently  be 
rescued  only  by  a  resort  to  drastic  measures — measures, 
largely  extra-legal  in  character,  which  pay  scant  respect  to 
the  time-honored  principles  of  representative  government  and 
separation  of  powers.  Some  means  must  be  found  for  con- 
trolling the  formulation  of  public  policy  in  the  legislature 
in  spite  of  its  defective  organization  and  procedure.  This 
means  has  been  found  in  several  different  quarters :  first,  in 
boss-rule ;  second,  in  the  popular  initiative ;  and  third,  in 
the  governor's  extra-legal  influence  over  legislation.  The 
power  of  the  boss  has  been  due  to  the  fact  that  he  has  per- 
formed two  functions  which,  under  present  conditions,  must 
of  necessity  be  assumed  by  some  person  or  body.  These  are 
the  dictation  of  legislation  and  the  appointment  of  nominally 
elective  officers.  In  other  words,  he  has  controlled'  both  legis- 
lation and  administration.  The  legislature,  as  at  present  con- 
stituted, must  of  necessity  be  led  by  some  person  or  persons. 
It  cannot  pass  upon  all  measures  that  come  before  it  without 
guidance  from  some  source.  Important  pieces  of  legislation 
do  not,  as  a  rule,  originate  in  the  legislature  itself.  They 
usually  emanate  from  outside  sources,  sometimes  legitimate, 
but  too  often  illegitimate.  The  bosses  have  too  frequently 
dictated  the  passage  or  the  side-tracking  of  measures.  But, 
since  the  legislature,  which  is  the  body  empowered  by  law 
to  perform  this  function,  is  not  fitted  to  do  so,  the  function 
must  of  necessity  be  either  usurped  by  some  body  or  organi- 
zation outside  the  governmental  system,  such  as  the  boss  or 
the  political  machine,  or  else  transferred  to  some  other  body 
within  the  governmental  system  better  qualified  for  its  proper 

71 


AMERICAN  STATE  ADMINISTRATION 

discharge.  Hitherto  the  former  alternative  has  been  more  fre- 
quently followed,  but  recently  means  of  controlling  legislation 
has  been  found  in  the  popular  initiative  and  in  the  governor's 
extra-legal  control  over  legislation. 

Without  minimizing  the  value  which  the  popular  initiative 
may  have  under  some  circumstances  in  increasing  the  degree 
of  democratic  control,  nevertheless  the  experience  which  we 
have  thus  far  had  with  it  seems  to  indicate  that  its  legitimate 
application  is  confined  to  those  matters  upon  which  the  people 
are  most  capable  of  passing,  viz.,  simple  and  broad  questions 
of  public  policy.  In  the  formulation  even  of  such  questions, 
the  people,  on  account  of  their  unorganized  condition,  need 
guidance,  and  such  guidance  may  often  be  furnished  by  a 
governor  who  has  the  qualities  of  leadership.  Better  still, 
the  governor,  as  the  "representative-at-large"  of  the  people, 
may  act  directly  in  advocacy  of  important  legislation  de- 
manded by  the  public  interests.  The  true  initiative  of  the 
people  is  not  necessarily  a  legal  initiative,  but  it  may  some- 
times be  found  in  the  originating  and  stimulating  force  of 
articulate  public  opinion  operating  through  the  effective  in- 
strumentality of  the  responsible  executive  head  of  the  state 
government. 

"The  whole  country,"  remarked  President  Wilson,  while 
governor  of  New  Jersey,  "since  it  cannot  decipher  the  methods 
of  its  legislation,  is  clamoring  for  leadership,  and  a  new 
role,  which  to  many  persons  seems  little  less  than  unconsti- 
tutional, is  thrust  upon  our  executives.  The  people  are  im- 
patient of  a  president  who  will  not  formulate  policy  and  in- 
sist upon  its  adoption.  They  are  impatient  of  a  governor  who 
will  not  exercise  energetic  leadership,  who  will  not  make  his 
appeals  directly  to  public  opinion  and  insist  that  the  dictates 
of  public  opinion  be  carried  out  in  definite  legal  reforms  of 
his  own  suggestion."  ^^    Thus,  when  powerful  impulses  from 

**  Address  before  the  Commercial  Club  of  Portland,  Oregon,  May  i8, 
1911. 

72 


THE  GOVERNOR'S  LEGISLATIVE  POWERS 

the  entire  citizenship  urge  a  governor  on,  he  may,  if  he  seizes 
the  opportunity,  forge  gradually,  by  the  accretion  of  precedent 
and  the  growth  of  custom,  an  instrument  of  control  over  both 
the  initiation  and  the  passage  of  legislation.  This  instru- 
ment is  his  personal  and  political  influence,  supported  by 
the  full  force  of  "pitiless  publicity"  and  public  discussion. 
This  has  occasionally  developed  into  a  much  broader  power 
than  that  which  is  usually  associated  with  the  right  of  send- 
ing messages  and  submitting  recommendations  to  the  legis- 
lature. In  this  new  role,  the  influence  of  the  governor  begins 
even  before  he  is  elected  in  assuming  the  leadership  of  his 
party,*"  defining  the  issues  of  the  campaign,  and  outlining 
the  program  of  legislation  which,  if  elected,  he  will  put  through 
the  legislature.*^  After  his  election,  the  governor,  in  order 
to  keep  public  attention  concentrated  on  the  principal  issues, 
may  restrict  his  messages  "to  a  few  definite  recommendations 
embodying  the  policies  in  favor  of  which  the  party  has  pro- 
nounced in  its  platform  or  those  for  which  he  is  willing  to 
assume  the  responsibility."  *^ 

**  President  Wilson,  when  a  candidate  for  governor  of  New  Jersey, 
declared  openly  that,  if  elected,  he  would  be  both  the  leader  of  his 
party  and  governor  of  the  whole  people  of  the  state.  New  York  Eve- 
ning Post,  October  S,   1910. 

**  By  a  recent  act  of  the  New  Jersey  Legislature  a  step  was  taken 
towards  granting  the  governor  or  candidate  for  governor  in  each  party 
a  greater  influence  over  the  formulation  of  the  public  policy  which,  as 
governor,  he  may  have  to  carry  into  effect.  It  provided  that  a  state 
convention  of  each  party  should  be  held  annually  for  the  purpose  of 
adopting  and  promulgating  a  party  platform,  which  convention  should 
be  composed  of  the  party  candidates  nominated  at  the  party  primaries 
for  the  office  of  member  of  the  assembly  or  state  senator,  together 
with  hold-over  senators,  members  of  the  state  committee,  and  "the 
candidate  of  the  party  for  governor  nominated  at  the  said  primaries 
in  the  year  in  which  a  governor  is  elected,  and  in  each  year  in  which 
no  governor  is  elected,  the  governor  of  the  state  shall  be  a  member 
of  the  convention  of  the  political  party  to  which  he  belongs."  New 
Jersey  Session  Laws  of  1911,  Ch.  183,  p.  276. 

**J.  W.  Garner,  Executive  Participation  in  Legislation,  Proceedings 
of  the  American  Political  Science  Association,  x,  p.  183. 

73 


AMERICAN  STATE  ADMINISTRATION 

In  initiating  and  promoting  the  passage  of  bills  embodying 
his  recommendations,  the  governor  may  appeal  to  the  legis- 
lature either  directly  or  indirectly  through  the  people.  Al- 
though, in  order  to  avoid  friction,  the  governor  does  not 
directly  introduce  completely  drafted  bills,  nevertheless  bills 
known  as  "administration  bills"  are  sometimes  introduced  in 
state  legislatures,  vi^hich  are  nominally  fathered  by  some  mem- 
ber of  the  legislature,  but  which  really  emanate  from  the 
governor.  By  a  rule  of  the  Illinois  House  of  Representa- 
tives, adopted  in  1913,  a  bill  or  resolution  introduced  to 
carry  out  a  recommendation  of  the  governor  may,  by  execu- 
tive message  addressed  to  the  speaker,  be  made  an  adminis- 
trative measure.  When  such  a  measure  has  been  reported  out 
of  committee,  it  has  precedence  over  all  other  bills  except  ap- 
propriation bills.  This  rule  "is  intended  to  give  assurance 
to  the  governor  that  measures  which  he  recommends  will 
be  given  fair  consideration  and  by  such  assurances  to  impose 
upon  him  the  obligation  to  have  a  legislative  program."  *^  In 
furtherance  of  the  administration's  legislative  program,  gov- 
ernors frequently  send  for  prominent  members  of  the  legis- 
lature, particularly  chairmen  of  important  committees,  and 
urge  them  to  vote  for  the  bills  embodying  the  program  to 
which  the  administration  is  pledged.  Governors  even  some- 
times appear  in  the  committee  rooms  and  at  legislative  hear- 
ings in  order  to  discuss  in  person  questions  of  public  policy 
and  to  advocate  the  measures  that  public  opinion  demands. 
The  governor  thus  actively  cooperates  with  the  legislature 
and  exerts  a  positive  influence  in  the  working  out  of  the  legis- 
lative program.  In  two  states,  as  already  pointed  out,**  the 
governor  has  the  constitutional  power  of  suggesting  amend- 
ments to  pending  legislation.  But  this  power  may  be,  and 
often    is,    exercised    extra-legally.      For    example,    Governor 

*'M.  D.  Hull  in  American  Political  Science  Review,  May,  1913,  p. 

239- 
**  Above,  p.  63. 

74 


THE  GOVERNOR'S  LEGISLATIVE  POWERS 

Philipp,  of  Wisconsin,  during  a  recent  legislative  session, 
suggested  an  amendment  to  the  jitney  bus  regulation  bill,  which 
was  embodied  in  the  final  draft.  Thus  the  personal  influence 
of  the  governor  over  the  course  of  legislation  is  actively  and 
constantly  exerted. 

The  governor  may  be  no  wiser  than  the  majority  of  the 
legislature,  but  he  has  a  wider  outlook  over  the  interests  of 
the  state,  and  represents  a  broader  constituency.  In  a  word, 
he  is  more  "state-minded."  If  the  governor  is  supported  by 
the  full  force  of  public  opinion  his  demands  may  at  times 
become  so  irresistible  that  he  approaches  to  the  position  of 
a  sort  of  official  boss.  This  power  does  not  properly  consist 
in  coercion  or  the  selling  of  appointments  for  favorable  votes 
on  administration  bills.  Such  tactics,  though  often  resorted 
to,  sooner  or  later  undermine  the  influence  of  the  executive. 
It  consists  rather  in  his  power  to  represent,  to  persuade,  and 
to  lead  the  people.  If  by  his  qualities  of  leadership  and  the 
force  of  his  arguments  he  can  persuade  the  people  during  the 
campaign,  the  same  qualities  will  give  him  such  a  personal 
ascendency  over  the  legislature  after  his  election  that  he  will 
be  able  to  lead  that  body  also.*^  This  is  doubtless  a  species 
of  bossism,  but  there  is  little  danger  in  such  bossism,  for  the 
governor  can  be  held  accountable  by  the  people  for  his  acts, 
while  the  unofficial  boss  cannot.  The  concentration  of  large 
power  in  the  hands  of  a  single  responsible  officer  need  no 
longer  excite  fear  of  tyranny,  for  such  a  condition  may  be  a 
step  towards  real  democracy.  It  merely  implies  that,  the 
legislature  having  failed  to  perform  its  theoretical  function 
as  an  instrument  of  true  democracy,  the  people  have  turned 
to  the  governor  as  a  more  likely  means  for  carrying  out  the 
popular  will. 

It  would  be  a  mistake  to  suppose  that  the  exercise  by  the 
governor  of  this  extra-legal  power  over  legislation  necessarily 

"  See  address  of  Woodrow  Wilson  before  the  House  of  Governors, 
Frankfort,  Kentucky,  November  29,  1910. 

75 


AMERICAN  STATE  ADMINISTRATION 

implies  that  he  is  to  be  in  continual  conflict  with  the  legis- 
lature. On  the  contrary,  he  may  and  should,  as  far  as  pos- 
sible, work  in  entire  harmony  and  cooperation  with  them. 
The  executive  and  legislative  branches  of  the  government 
should  be  effectively  harnessed  together  in  the  common  public 
service.  But,  in  the  case  of  a  recalcitrant  legislature,  the 
governor's  power  of  appealing  directly  to  the  people  always 
remains  in  reserve,  though  its  existence  would  usually  render 
its  exercise  unnecessary.  For,  no  matter  how  jealous  a  legis- 
lature may  be  of  its  own  prerogatives,  no  matter  how  in- 
capable it  may  be  of  being  bulldozed,  wheedled  or  cajoled 
by  threats  or  intimidation  on  the  part  of  the  governor,  it  can 
seldom  withstand  the  force  of  pitiless  publicity  wielded  by  a 
vigorous,  independent,  and  courageous  governor,  supported 
by  the  pressure  of  intelligent  and  aroused  public  opinion.  And 
it  is  the  function  of  the  governor  to  keep  it  aroused  by  a 
continuous  and  relentless  application  of  repeated  doses  of 
publicity  throughout  the  whole  course  of  legislation. 

The  open  leadership  of  able,  responsible  and  fearless  gov- 
ernors is  thus  becoming  an  effective  instrumentality  for  the 
formulation  and  control  of  public  policy  by  public  opinion. 
This  development,  it  is  true,  has  as  yet  by  no  means  been 
carried  out  to  its  fullest  or  logical  extent.  The  legal  powers 
of  the  governor  in  legislation  are  still  quite  insufficient  and 
incommensurate  with  his  responsibility,  for  constitutional  and 
legal  reform  usually  lags  far  behind  actual  practice.  Even 
the  extra-legal  power  of  the  governor  has  developed  haltingly 
and  uncertainly  and  still  frequently  falls  far  behind  the  ex- 
tent of  his  responsibility.  Governors  have  not  yet  followed 
the  example  of  President  Wilson  in  addressing  the  legisla- 
tures in  person  instead  of  sending  written  messages.  Nor 
have  governors  or  their  cabinet  officers  as  yet  the  privilege 
of  seats  upon  the  floor  of  the  legislative  chambers,  where 
public  debate  and  the  constant  interchange  of  views  and  ar- 
guments between  the  executive  and  the  members  of  the  legis- 

76 


THE  GOVERNOR'S  LEGISLATIVE  POWERS 

lature  would  not  only  enable  the  legislature  more  effectively 
to  criticize  the  conduct  of  the  administration  but  would  also 
favorably  affect  the  character  of  the  legislative  product,  and 
help  greatly  to  clarify  public  opinion  upon  pending  issues. 
Even  with  these  limitations  the  governor's  extra-legal  powers 
in  legislation  may  be  denounced  by  some  as  usurpation  and  a 
violation  of  time-honored  theories.  But  the  justification  lies 
in  the  results,  which  have  been  uniformly  in  the  direction 
of  increasing  popular  control  over  the  state  business.  In  par- 
ticular, the  increasing  executive  leadership  in  matters  of  leg- 
islation has  a  favorable  effect  upon  the  administration,  for, 
with  his  broader  perspective  and  more  intimate  acquaintance 
with  the  needs  of  the  administration,  the  governor  is  able  to 
some  extent  to  neutraHze  the  injurious  effects  which  detailed 
legislative  control  over  the  administration  frequently  entails. 

REFERENCES  AND  COLLATERAL  READING 

Alger,  G.  W.     The  Old  Law  and  the  Netv  Order,  Ch.  I. 

Barnett,  J.  D.  "Executive  Control  of  the  Legislature,"  Ameri- 
can Law  Review,  xli  (1907),  pp.  215-238;  384-406. 

Barthelemy,  J.  Le  Role  du  Pouvoir  Executif  dans  les  Repub- 
liques  Modernes,  pp.  62-76. 

Bradford,  G.  "Reform  of  Our  State  Governments,"  Annals  of  the 
American  Academy,  iv  (1894),  pp.  883-903. 

Dealey,  J.  Q.  Growth  of  American  State  Constitutions,  pp.  162- 
164;  285-286. 

Fairlie,  J,  A.  "The  State  Governor,"  Michigan  Law  Review, 
x   (1912). 

Finley,  J.  H.  and  Sanderson,  J.  F.  American  Executive  and 
Executive  Methods,  Chs.  VI  and  XIV. 

Garner,  J.  W.  "Executive  Participation  in  Legislation,"  Proceed- 
ings of  the  American  Political  Science  Association,  x,  pp. 
176-190. 

GooDNOW,  F.  J.  Principles  of  the  Administrative  Law  of  the 
United  States,  pp.  94-98. 

Mathews,  J.  M.  "The  New  Role  of  the  Governor,"  American 
Political  Science  Review,  vi,  pp.  216-229. 

77 


AMERICAN  STATE  ADMINISTRATION 

Mathews,  J.  M.    "The  New  Stateism,"  North  American  Review,  June, 

1911,  pp.  808-815. 
Reinsch,  p.  S.    Readings  on  American  State  Government,  pp. 

14-19. 
Sait,  E.  M.,  Mills,  O.  L.,  and  Dawson,  E.    "Participation  of  the 

Executive  in   Legislation,"  Proceedings  of  the  Academy  of 

Political  Science,  v.  No,  I  (1914),  pp.  127-140. 
ScHOULER,  J.    Constitutional  Studies,  pp.  275-278. 


CHAPTER   IV 
THE  GOVERNOR'S  ADMINISTRATIVE  POWERS 

At  the  beginning  of  the  development  of  the  state  govern- 
ments, the  governor,  as  we  have  seen,  was  principally  a  politi- 
cal officer,  while  control  of  the  administration  was  almost 
entirely  in  the  hands  of  the  legislature.  The  latter  body  still 
retains  large  powers  of  control  over  the  administration,  but 
the  governor's  administrative  powers  have  increased  and, 
though  still  subject  to  serious  limitations,  are  by  no  means 
negligible.  The  general,  as  distinguished  from  the  special, 
administrative  powers  of  the  governor  consist  of  his  power 
to  execute  the  laws,  to  supervise  the  subordinate  administra- 
tive officers,  and  to  make  appointments  to  and  removals  from 
offices  in  the  administration. 

It  is  worth  while  to  consider,  in  the  first  place,  the  methods 
whereby  executive  power  is  vested  in  the  governor  by  the 
state  constitutions.  The  Constitution  of  the  United  States 
provides  that  "the  executive  power  shall  be  vested  in  a  Presi- 
dent," whereas,  in  respect  to  the  judicial  power,  the  same 
instrument  declares  that  it  "shall  be  vested  in  one  supreme 
court,  and  in  such  inferior  courts  as  Congress  may  ...  es- 
tablish." This  language  would  seem  to  imply,  prima  facie, 
that,  while  the  judicial  power  may  be  divided,  the  executive 
power  is  concentrated  in  the  President.  Such  is,  in  fact, 
the  case,  though  not  as  a  result  of  this  provision,^  but  as  a 
result  of  the  president's  power  of  removal.  Some  of  the 
state  constitutions,  including  those  of  New  York,  New  Jersey, 
Maryland,  Indiana  and  Wisconsin,  follow  the  language  of  the 

^  See  Kendall  vs.  United  States,  12  Peters,  524. 

79 


AMERICAN  STATE  ADMINISTRATION 

United  States  Constitution  and  declare  that  "the  executive 
power  shall  be  vested  in  a  governor."  This  is  a  verbal  inac- 
curacy, for  "the  executive  power"  is  in  reality  vested  not 
only  in  a  governor  but  also  in  various  other  officers  and 
boards,  established  by  the  constitution  or  by  statute.  It  is  not 
strictly  accurate  to  speak  of  the  governor  as  the  head  of  the 
administration,  for  there  are  many  such  heads,  though  the 
governor  is  usually  the  most  important  and  conspicuous  head. 
The  majority  of  the  state  constitutions  recognize  this  dis- 
tinction by  providing  that  "the  supreme  (or  chief)  executive 
power  shall  be  vested  in  a  governor."  It  will  thus  be  seen 
that  the  word  "supreme,"  as  here  used,  operates  to  limit 
rather  than  to  extend  the  governor's  power.  It  implies  that, 
though  the  supreme  or  highest  executive  power  is  vested  in 
the  governor,  there  are  also  subordinate  executive  powers 
vested  in  other  officers,  over  whom  the  governor  may  not 
necessarily  exercise  any  control.  This  situation  is  made  clearer 
still  in  some  constitutions,  such  as  those  of  Pennsylvania 
and  Illinois,  which,  while  declaring  that  the  supreme  execu- 
tive power  shall  be  vested  in  a  governor,  also  provide  that 
the  executive  department  shall  consist  of  a  governor,  lieu- 
tenant-governor, secretary  of  state,  and  other  officers.  On 
the  whole,  however,  whatever  the  particular  wording  of  these 
provisions,  the  result,  in  respect  to  the  governor's  powers, 
is,  for  all  practical  purposes,  the  same.  The  courts  have  al- 
most uniformly  held  that  the  governor  has  little  or  no  in- 
herent executive  power  under  these  provisions.  In  other 
words,  the  rule  of  delegated  powers  and  strict  construction  has 
been  nearly  everywhere  applied  to  the  governor,  so  that  legally 
he  is  not  usually  considered  as  having  any  particular  power 
unless  it  is  granted  to  him,  in  the  constitution  or  statutes, 
either  expressly  or  by  necessary  implication." 

'Field  vs.  People,  3  111.,  79  (1840)  ;  State  vs.  Bowden,  92  S.  C,  393 
(1912).  The  principal  exception  to  this  doctrine  is  where  it  is  held 
that  the  governor  may  exercise  a  power  which,  though  not  granted 

80 


THE  GOVERNOR'S  ADMINISTRATIVE  POWERS 

A  general  administrative  power  of  the  governor,  found 
in  practically  all  the  constitutions,  is  that  which  authorizes 
him  to  "take  care  (or  see)  that  the  laws  are  faithfully  ex- 
ecuted." The  power  thus  conferred,  in  the  absence  of  fur- 
ther specific  provisions,  is  vague  and  indefinite  in  character 
and  extent.  The  "laws"  referred  to  doubtless  include  to 
some  extent  constitutional  and  common  law  provisions,  but, 
in  the  main,  the  power  comes  into  operation  only  as  the  result 
of  some  legislative  enactment  authorizing  the  governor  to 
carry  out  or  execute  some  particular  provision  of  the  statutory 
law.  The  Constitution  of  the  United  States  also  authorizes 
the  president  to  take  care  that  the  laws  are  faithfully  ex- 
ecuted, and,  under  it,  he  may  take  measures  to  protect  a 
justice  of  the  supreme  court  from  violence,  in  the  absence 
of  any  congressional  authorization  to  that  ejffect.^  The  gov- 
ernor's powers,  however,  have  not  usually  been  construed  to 
extend  so  far  as  to  enable  him  to  take  any  specific  action  in 
the  enforcement  of  the  laws  in  the  absence  of  any  specific 
constitutional  or  statutory  provision  to  that  efifect.  The  gov- 
ernor, for  example,  has  no  inherent  authority  to  sue  in  the 
name  of  the  state  as  a  result  of  the  provision  requiring  him 
to  enforce  the  laws.*  Nor  has  the  governor  the  right  to 
take  out  insurance  on  the  state  capitol,  in  the  absence  of  any 
law  specifically  authorizing  him  to  do  so,  even  though  the 

to  him  either  expressly  or  by  necessary  implication,  is  nevertheless  in- 
cidental to  an  expressly  granted  power.    Cf.  Keenan  vs.  Perry,  24  Tex., 

253. 

^  In  re  Neagle,  135  U.  S.,  i. 

*  Henry  vs.  State,  39  So.,  856.  But  per  contra,  see  the  case  of  Louisi- 
ana vs.  Dubuclet  (22  La.  Ann.  602),  where  it  was  held  that,  since  the 
governor  is  the  proper  representative  of  the  state  and  bound  to  pro- 
tect her  interests,  he  may  intervene  in  behalf  of  the  state  and  take  an 
appeal  where  other  officers,  such  as  the  attorney-general,  are  absent 
from  the  state  or  fail  to  discharge  their  duties  in  taking  an  appeal; 
or  the  case  under  the  same  title  in  25  La.  Ann.  161,  where  it  was  held 
that  the  governor's  right  to  take  an  appeal  cannot  be  taken  away  from 
him  merely  because  the  attorney-general  has  already  taken  an  appeal 

81 


AMERICAN  STATE  ADMINISTRATION 

legislature  has  appropriated  the  funds  to  pay  the  premiums.'' 
It  is  not  expected,  as  a  rule,  that  the  governor  will,  in  per- 
son, execute  the  laws,  unless  conditions  require  the  calling 
out  of  the  militia,  of  which  he  is  commander-in-chief.  It 
will  be  noted  that  the  constitutions  do  not  provide  that  the 
governor  shall  execute  the  laws,  but  merely  that  he  shall  see 
that  they  are  executed.  It  thus  becomes  his  duty  "carefully 
to  observe  the  manner  in  which  the  different  officers  of  the 
government  exercise  their  proper  functions  and  execute  the 
laws  committed  to  their  charge,  or  their  failure  to  perform 
such  duties;  and  when  they  fail  to  act,  or  act  improperly, 
if  he  has  the  power  to  remove  them  from  office,  to  do  so ; 
or  if  he  has  not,  to  bring  the  subject  to  the  cognizance  of 
that  department  of  the  government  which  has  the  power  to  re- 
move or  punish  them."  ®  Ordinarily,  therefore,  the  governor 
merely  supervises  to  some  extent  the  officers  upon  whom 
rests  the  duty  to  carry  out  the  various  laws  of  the  state. 
Such  supervision,  however,  is  very  incomplete  and  the  ma- 
chinery for  the  execution  of  the  laws  is  for  the  most  part  in 
the  hands  of  officers,  both  state  and  local,  over  whom  the 
governor  has  little  or  no  control.  If  the  governor  is  to  be 
held  responsible  for  the  execution  of  the  laws  and  for  the 
fulfillment  of  his  oath  to  support  the  constitution,  then  it 
logically  follows  that  he  ought  to  have  full  control  over  the 
selection  and  the  official  acts  of  those  agents  who  are  the 
"arms  of  the  governor,"  and  upon  whom  he  must  depend  to 
a  large  extent  for  the  enforcement  of  the  laws.  In  this 
respect,  however,  the  organization  of  the  state  administration 
is  far  from  logical. 

The  legal  powers  whereby  the  governor  exercises  control 
over  the  personnel  of  the  administration  are  those  of  ap- 
pointment to  office,  supervision  or  direction  while  in  office, 
and  suspension  or  removal  from  office.     At  the  beginning  of 

'Shields  vs.  Bennett,  8  W.    Va.,  74  (1874). 
•  Shields  vs.  Bennett,  8  W.  Va.,  89. 

82 


THE  GOVERNOR'S  ADMINISTRATIVE  POWERS 

the  history  of  the  state  governments,  as  we  have  seen,  the 
power  of  appointment  of  administrative  officers  was  largely 
in  the  hands  of  the  legislature.  During  the  first  part  of  the 
nineteenth  century,  the  power  of  selecting  most  of  these  of- 
ficers was  transferred  to  the  electorate.  During  this  period 
the  governor  was  considered  as  being  primarily  a  political 
officer  and  the  power  of  appointment,  it  was  felt,  did  not  rest 
inherently,  or  even  more  properly,  in  the  executive  than  in 
the  other  departments  or  authorities  of  the  government.'  Both 
the  methods  of  legislative  appointment  and  popular  election, 
however,  have  failed  to  prove  satisfactory  in  practice.  It  is 
not  surprising,  therefore,  to  find  that,  in  the  more  recent  con- 
stitutions, the  governor's  power  of  appointment  has  been  broad- 
ened. Furthermore,  the  legislature,  in  creating  during  late 
years  a  large  number  of  new  officers  and  boards,  has  usually 
vested  their  appointment  in  the  governor.  The  increase  of 
the  governor's  power  of  appointment  has  been  due,  not  only  to 
the  unsatisfactory  nature  of  other  methods,  but  also  in  part 
to  the  influence  of  the  increasing  complexity  of  social  and 
economic  conditions  of  modern  life,  and  to  the  consequent 
feeling  that  there  should  be  an  increase  in  the  effectiveness 
of  executive  and  administrative  action,  in  order  that  the  pur- 
poses for  which  the  executive  authority  is  established  may 
be  more  fully  effectuated.  In  spite  of  this  tendency,  however, 
the  governor's  power  of  appointment  is  still  greatly  inferior  to 
that  of  the  President  of  the  United  States,  and  is  subject  to 
serious  limitations. 

The  governor's  power  of  appointment  is  derived  both  from 
the  constitution  and  from  statutes.  The  constitutional  power 
is  sometimes  in  the  form  of  authorization  to  appoint  certain 
specific  officers.  The  constitution  of  Pennsylvania,  for  ex- 
ample, empowers  the  governor  to  appoint  the  secretary  of  the 
Commonwealth,  attorney-general  and  superintendent  of  public 

'  Cf .  Fox  vs.  McDonald,  loi  Ala.,  51   (1893). 

83 


AMERICAN  STATE  ADMINISTRATION 

instruction.*  The  larger  share  of  the  governor's  constitutional 
power  of  appointment,  however,  comes  from  such  omnibus 
clauses  as  that  found  in  the  Illinois  constitution,  providing  that 
the  governor  shall  appoint  all  officers  whose  offices  are  estab- 
lished by  the  constitution  or  created  by  law,  and  whose  appoint- 
ment or  election  is  not  otherwise  provided  for.^  The  gov- 
ernor's power  to  appoint  to  offices  created  under  legislative 
acts  is  more  liable  to  fluctuate  in  extent  than  when  provided 
for  in  the  constitution.  When  the  governor  and  the  majority 
in  the  legislature  belong  to  the  same  political  party,  his  ap- 
pointing and  removal  powers  tend  to  increase,  while  the  con- 
trary is  the  case  if  he  is  out  of  political  accord  with  that 
body.  The  officers  whom  the  governor  may  appoint,  whether 
under  the  constitution  or  statutes,  belong  principally  to  the 
state  executive  department,  but  he  also  has  some  power  of 
appointing  judicial  and  local  officers. 

Although  the  governor  has  thus  a  considerable  patronage, 
the  number  of  offices  subject  to  his  disposal  in  the  more 
important  states,  such  as  New  York,  Pennsylvania  and  Illi- 
nois, running  up  into  the  hundreds,  nevertheless  the  most  im- 
portant state  officers,  usually  denominated  heads  of  depart- 
ments, are  still  nearly  everywhere  either  elected  by  popular 
vote  or,  in  a  few  states,  appointed  by  the  legislature.  This 
situation  is  a  relic  of  the  outworn  idea  that  one-man  power 
is  dangerous  and  that  the  heads  of  departments,  instead  of 
being  the  effective  instrumentalities  of  the  governor,  should 
be  checks  upon  him.^*'  This  idea  of  checks  and  balances 
within  the  executive  department  is  seen  in  an  extreme  form 
in  the  following  statement  of  a  member  of  the  Louisiana 
Constitutional  Convention  of  1845:  "It  is  said  that,  per- 
haps,  the  secretary  of  state,  who  is  elected  by  the  people, 

*  Art.  IV,  Sect.  8. 
•Art.  V,  Sect.  10. 

"  Cf.  Debates  in  the  Louisiana  Constitutional  Convention  of  1845,  p. 
290. 

84 


THE  GOVERNOR'S  ADMINISTRATIVE  POWERS 

may  be  of  opposite  political  opinions  from  the  governor. 
If  this  should  happen,  so  far  from  being  an  objection  to 
the  system,  it  is  an  advantage,  for  no  one  can  keep  as  sharp 
a  lookout  as  a  political  adversary;  and  if  such  a  one  is  sec- 
retary of  state  to  a  governor  of  opposite  political  opinions, 
he  is  sure  to  be  a  most  efficient  check  upon  the  executive."  ^* 
The  check  upon  the  governor,  however,  in  so  far  as  it  is  de- 
sirable at  all,  should  come  from  the  other  departments  of 
the  government  and  from  his  responsibility  to  the  people,  and 
not  from  administrative  officers  in  his  own  department.  The 
election  by  the  people  at  the  same  time  of  both  the  governor 
and  the  heads  of  departments  usually  secures  political  har- 
mony between  them,  and  this  helps  somewhat  to  decrease  the 
injurious  effects  upon  the  conduct  of  the  administration  aris- 
ing from  the  governor's  inability  to  select  such  heads.  Even 
when  the  governor  and  heads  of  departments  belong  to  the 
same  political  party,  however,  there  may  be  no  real  or  ad- 
ministrative harmony  between  them,  on  account  of  factional 
fights  within  the  party.  Furthermore,  it  may,  and  sometimes 
does,  happen  that  a  candidate  for  governor,  who  runs  stronger 
than  the  rest  of  his  ticket,  will  be  elected,  while  the  candi- 
dates of  his  party  for  the  other  executive  offices  will  fail  of 
election.  For  example.  Governor  Hughes,  of  New  York,  was 
elected  as  a  Republican,  but  the  principal  heads  of  state  de- 
partments during  his  administration  were  Democrats.  On 
the  other  hand,  in  Massachusetts  during  recent  years,  the 
governor  has  been  a  Democrat  while  the  other  executive  state 
officers  have  been  Republicans.  President  Wilson,  while  gov- 
ernor of  New  Jersey,  had  a  hold-over  Republican  attorney- 
general.  Thus  it  may  happen  that  the  governor's  powers, 
as  far  as  the  conduct  of  the  administration  is  concerned, 
may,  under  present  conditions,  be  considerably  crippled. 

The  heads  of  state  executive  departments  have  never  been 
considered  as  occupying  the  same  relation  towards  the  gov- 

"  Ibid.,  p.  292. 

85 


AMERICAN  STATE  ADMINISTRATION 

emor  that  the  members  of  the  president's  cabinet  in  the 
national  government  occupy  towards  their  chief.  Although 
party  considerations  may  bring  the  corresponding  state  of- 
ficers into  close  touch  with  the  governor,  nevertheless  they 
are  not  in  legal  contemplation  considered  as  the  confidential 
advisers  of  the  governor,  for  they  are  not  subject  to  his  direc- 
tion, but,  on  the  other  hand,  their  duties  are  prescribed  by  law. 
Owing  to  this  condition  of  affairs,  it  has  sometimes  been 
maintained  that  there  would  be  no  propriety  in  vesting  the 
appointment  of  these  officers  in  the  governor,  but  that,  on  the 
contrary,  they  should  be  either  appointed  by  the  legislature 
or  elected  by  the  people.^^  This,  however,  is  equivalent  to 
arguing  in  a  circle,  for  the  fact  that  these  officers  have  never 
developed  into  a  cabinet  to  the  governor  is  due  principally 
to  the  fact  that  their  duties  and  powers  are  prescribed  by 
the  legislature,  and  not  by  the  governor.  That  this  system 
of  administrative  insubordination  is  likely  to  produce  an 
unsatisfactory  and  even  disastrous  condition  of  affairs  has 
often  been  pointed  out  by  careful  observers.  In  the  New 
York  Constitutional  Convention  of  1821,  Chancellor  Kent 
argued  against  the  appointment  of  the  attorney-general  by 
the  legislature  on  the  ground  that  this  was  not  an  appro- 
priate function  of  that  department.  "The  attorney-general," 
he  said,  "was  an  executive  officer,  and  his  appointment  should 
emanate  from  the  executive  department."  ^^  Members  of 
the  Louisiana  Constitutional  Convention  of  1845  declared 
that  the  election  of  the  secretary  of  state  by  the  people  would 
be  equivalent  to  throwing  confusion  and  disorder  into  the  ad- 
ministration of  the  executive  department."  ^*  That  officer, 
it  was  argued,  "ought  certainly  to  be  independent  of  any  ser- 
vility to  the  governor,  but  at  the  same  time  the  governor  should 

"  See  Debates  of  the  Pennsylvania  Constitutional  Convention  of  1873, 
ii.  P-  350,  and  v,  p.  211. 
^Reports  of  the  Proceedings  and  Debates,  p.  302. 
"  Debates,  p.  290. 

86 


THE  GOVERNOR'S  ADMINISTRATIVE  POWERS 

not  be  placed  in  a  servile  attitude  toward  the  secretary  of 
state,  without  whom  the  governor  could  scarcely  perform  a 
single  act.  Suppose  that  the  secretary  of  state  chooses  to 
arrogate  to  himself  that  the  governor  shall  not  examine 
the  archives,  that  he  shall  have  no  control  over  them,  would 
not  that  be  an  absurd  and  extravagant  idea,  and  inconsistent 
with  the  supervision  which  the  governor  is  presumed  to  ex- 
ercise not  only  over  his  immediate  department,  but  over  every 
other  officer  of  the  state,  to  see  that  the  laws  are  carried  into 
effect  ?"^= 

Although  it  thus  appears  that  the  selection  of  the  older 
constitutional  officers,  usually  denominated  heads  of  depart- 
ments, has  not  yet  been  placed  in  the  hands  of  the  governor, 
nevertheless  to  him  has  been  intrusted  the  appointment  of 
most  of  the  newer  administrative  bodies,  boards  and  commis- 
sions, created  within  recent  years.  The  powers  and  duties 
of  some  of  the  older  constitutional  officers  are  still  quite 
important,  but  relatively  to  those  of  the  whole  body  of  ex- 
isting state  administrative  agencies,  they  are  not  now  so  im- 
portant as  formerly.  The  governor's  power  of  appointment 
of  these  newer  agencies,  therefore,  represents  an  increase  of 
his  control  over  the  personnel  of  the  administration  that  is 
worthy  of  notice.  There  are,  however,  limitations  upon  his 
power  of  control  which  materially  diminish  its  importance. 
In  order  to  insure  some  degree  of  continuity  in  the  policies 
of  state  boards  and  commissions,  the  practice  is  usually  fol- 
lowed of  gradually  renewing  their  personnel  through  the  de- 
vice of  overlapping  terms  and  the  appointment  of  one  or 
more  new  members  each  year.  Therefore,  where  a  board  con- 
sists of  seven  or  nine  members,  a  governor  may  not,  during 
his  term  of  office,  have  an  opportunity  of  appointing  a  ma- 
jority of  the  board.  This  naturally  decreases  what  little  con- 
trol the  governor  might  otherwise  have  over  the  conduct  of 
such  boards.  The  provisions  of  legislative  enactments  fixing 
^  Ibid.,  p.  293. 

87 


AMERICAN  STATE  ADMINISTRATION 

the  length  of  terms  for  administrative  officers  and  boards  who 
are  appointed  by  the  governor  operate  also  to  limit  his  control 
over  such  bodies.  Legislative  fixation  of  terms  of  adminis- 
trative officers  is  a  form  of  legislative  removal  at  the  end  of 
a  term,  differing  usually,  however,  from  other  forms  of  re- 
moval in  that  it  is  of  a  more  general  character  and  not  di- 
rected at  a  particular  person.  A  result  of  legislative  fixation 
of  terms,  operating  as  a  limitation  upon  executive  control 
of  the  administration  even  more  seriously  perhaps  than  legis- 
lative removal  at  the  end  of  the  term,  is,  where  the  governor 
has  no  power  of  removal,  legislative  maintenance  of  an  official 
in  office  during  the  continuance  of  his  term.  The  executive 
discretion  in  making  appointments  is  also  hampered  by  legis- 
lative enactments  providing  that  appointees  must  comply  with 
certain  specified  qualifications.  Civil  service  laws,  now  found 
in  a  number  of  states,  constitute  a  form  of  such  enactments, 
but,  as  they  generally  apply  only  to  appointees  to  the  minor 
positions,  they  do  not  seriously  affect  the  governor's  power 
of  appointment.  Qualifications  such  as  those  found  in  Iowa, 
requiring  the  governor  to  choose  the  commissioners  of  phar- 
macy from  the  most  competent  pharmacists  of  the  state,  are 
too  indefinite  to  affect  seriously  the  governor's  appointing 
power.  In  many  cases,  however,  qualifications  laid  down  by 
statute  are  definite  in  character  and  do  substantially  affect 
the  executive  control  of  appointments.  For  example,  by  a 
Florida  law  of  1905,^^  the  governor  was  empowered  to  ap- 
point the  members  of  the  state  board  of  control,  subject  to 
the  provision  that  the  members  should  be  distributed  by  resi- 
dence among  the  different  sections  of  the  state,  and  that  no 
member  should  be  a  resident  of  any  county  in  which  any  in- 
stitution under  the  control  of  the  board  should  be  situated." 
The  appointing  power  of  the  governor  has  been  thus  far 

'"Ch.  5384. 

"  This  act  was  upheld  as  constitutional  by  the  Supreme  Court  of  the 
state.     See  State  vs.  Bryan,  50  Fla.,  293. 

88 


THE  GOVERNOR'S  ADMINISTRATIVE  POWERS 

spoken  of  as  if  vested  in  him  alone.  It  is  true  that,  in  most 
states,  there  are  a  number  of  offices  which  the  governor 
alone  is  empowered  to  fill.  But  it  is  also  true  that  a  great 
many  appointments,  and  these  usually  the  most  important  at 
his  disposal,  can  be  made  by  him  only  in  association  with 
some  other  body.  This  association  takes  several  forms  in 
accordance  with  the  character  of  the  body  with  whom  the 
governor  must  act.  With  the  object  of  preventing  political 
considerations  from  entering  into  the  appointment  of  mem- 
bers of  boards  requiring  technical  or  professional  qualifi- 
cations, it  has  sometimes  been  provided  that  the  governor 
shall  make  the  appointment  from  a  list  of  names  submitted 
to  him  by  the  related  professional  association  of  the  state., 
A  law  of  Missouri,^*  for  example,  required  the  governor 
to  appoint  a  state  board  of  barber  examiners  to  be  recom- 
mended by  certain  named  associations.^^  This  limitation  upon 
the  power  of  appointment,  however,  cannot  be  carried  so 
far  as  to  encroach  upon  the  proper  executive  power  of  the 
governor,^"  nor  upon  the  constitutional  right  of  the  Senate 
to  approve  the  appointment.^^ 

Another  form  of  limitation  upon  the  governor's  power  of 
appointment  through  association  with  other  bodies  is  that 
which  joins  him  with  some  of  the  other  principal  state  execu- 
tive officers  in  an  ex  officio  appointing  board.  Thus,  in  Iowa, 
the  secretary  and  members  of  the  state  board  of  health  are 
appointed  by  a  board  composed  of  the  governor,  secretary  of 
state  and  the  auditor  of  state.    An  act  of  Maryland  provided 

"Revised  Statutes,  1899,  Ch.  78. 

"  The  action  of  these  associations  in  accordance  with  the  law  could 
be  compelled  by  mandamus.    Ex  parte  Lucas,  160  Mo.,  218. 

**  A  Missouri  law  of  191 1,  providing  for  a  non-partisan  board  of  elec- 
tion commissioners  in  cities  to  be  appointed  by  the  governor,  from  a 
list  submitted  by  the  state  committees  of  the  political  parties,  was  held 
invalid  as  encroaching  on  the  executive  power  of  the  governor.  State 
vs.  Wright,  158  S.  W.,  823. 

"State  vs.  Griffin,  69  Minn.,  311   (1897). 

89 


AMERICAN  STATE  ADMINISTRATION 

that  the  chief  officer  of  the  insurance  department  of  the  state 
should  be  appointed  and  removed  by  the  governor,  state  treas- 
urer, and  state  comptroller.^^  This  arrangement  puts  the 
appointing  power  of  the  chief  executive,  so  to  speak,  into 
commission,  and  accentuates  the  already  too  conspicuous  plu- 
rality of  heads  in  the  state  administration.  However,  this 
particular  form  of  diffusion  of  power  is  now  somewhat  un- 
common as   compared  to  other   forms. 

By  far  the  most  frequent  and  important  limitation  of  this 
character  upon  the  governor's  appointing  power  is  that  which 
associates  its  exercise  with  the  advice  and  consent  of  an  ex- 
ecutive council  or  with  the  upper  branch  of  the  legislature. 
The  executive  council  is  now  found  in  only  a  few,  princi- 
pally New  England,  states.  In  the  other  states  a  large  ma- 
jority of  the  most  important  appointments  at  the  disposal  of 
the  governor  are  subject  to  the  confirmation  of  the  senate. 
In  either  case,  the  ostensible  objects  of  the  arrangement  are 
to  secure  a  greater  degree  of  popular  control  over  appoint- 
ments, to  give  the  governor  the  benefit  of  capable  advice, 
and  to  prevent  the  entrance  of  party  considerations  into  the 
making  of  appointments.  These  objects,  however,  are  seldom, 
if  ever,  fully  attained,  and  frequently  not  at  all.  On  the 
contrary,  the  division  of  power  and  responsibility  between 
the  governor  and  the  senate  ordinarily  lessens  popular  con- 
trol over  appointments  and  makes  directly  for  the  entrance 
of  party  considerations.  In  the  national  government,  the 
power  of  the  senate  to  confirm  the  president's  appointments 
has,  through  usage  and  tradition,  become  sometimes  merely 
nominal.  His  appointments  to  cabinet  positions  are  confirmed 
as  a  matter  of  course.  The  power  of  the  state  senate  over 
the  governor's  appointments,  however,  is  very  real,  and,  if 
the  upper  branch  is  controlled  by  the  political  party  op- 
posed to  the  governor,  the  result  is  apt  to  be  either  a  deadlock 
or  the  subservience  of  th  *  governor.     Such  a  condition  of 

^Maryland  Code  Public  General  Laws,  1896,  Art.  23,  Sect.  121. 

90 


THE  GOVERNOR'S  ADMINISTRATIVE  POWERS 

affairs  is  still  more  apt  to  happen  where,  as  in  Pennsylvania 
and  Iowa,  more  than  a  mere  majority  of  the  senate  is  required 
to  ratify  the  governor's  nominations.  A  small  group  of  sen- 
ate members  may  then  tie  up  the  machinery  of  government.^' 
Even  when  only  a  mere  majority  of  the  senate  is  required 
for  confirmation,  and  although  the  governor  is  in  political  har- 
mony with  the  majority  of  the  senate,  it  may  nevertheless 
happen,  and  frequently  does  happen,  that  the  governor  will  be 
under  the  necessity  of  consulting  the  influential  leaders  of 
the  party  in  the  senate  before  making  appointments.  It  must 
be  admitted  that,  in  the  past,  such  consultations  have  fre- 
quently had  one  or  the  other  of  two  results :  either  the  j 
governor  has  agreed  to  nominate  to  important  administrative 
posts  men  who  are  acceptable  to  the  party  leaders  in  return 
for  the  passage  of  legislation  which  he  desires,  or  else  the 
governor  has  yielded  to  the  senate  on  matters  of  legislative 
policy  in  return  for  the  consent  of  that  body  to  ratify  the  \ 
nomination  of  men  whom  he  desires  to  appoint.^*  If  the 
power  of  appointment  were  concentrated  in  the  hands  of  the 
governor  alone,  there  would  still  be  a  possibility  that  the 
governor  might  sometimes  be  tempted  to  trade  appointments 
desired  by  party  leaders  in  the  legislature  for  favorable  votes 
on  administrative  measures.  There  would,  however,  be  much 
less  danger  of  such  a  result,  because  the  sole  responsibility 
for  the  appointments  would  rest  squarely  upon  the  governor. 
He  could  not  blame  the  senate  for  bad  appointments,  and 
he  would  not  so  readily  run  the  risk  of  incurring  popular 
disapproval  through  making  purely  partisan  appointments 
without  regard  to  the  qualifications  of  the  appointees  for  the 
positions.     It  would  thus  be  possible  to  secure  the  benefit 

^  Cf.  Debates  of  the  Pennsylvania  Constitutional  Convention  of  1873, 

V,  pp.  206-207. 

**  In  the  case  of  ratification  by  an  executive  council,  this  statement, 
of  course,  would  not  apply,  and  the  governor's  position  in  regard  to  the 
legislature  would  be  stronger. 

91 


AMERICAN  STATE  ADMINISTRATION 

of  what  Francis  Lieber  has  called  "one  of  the  chief  advan- 
tages of  a  Uni-Executive,  now  universally  adopted  in  Amer- 
ica, viz.,  that  the  Executive  is  lifted  sufficiently  above,  or 
singled  out  from  the  rest  of  the  citizens,  both  to  feel  some- 
what, at  least,  disentangled  from  party  meshes,  and  to  in- 
dividualize responsibility."  ^^  Under  the  present  limitation 
of  confirmation  by  the  senate,  however,  there  is  usually  little 
sense  of  responsibility  either  in  the  appointing  authority  or 
in  the  appointee.  The  subservience  of  the  governor  is  some- 
times such  that  the  real  power  of  appointment  is  in  the  sen- 
ate. The  considerable  powers  of  appointment  which  the  legis- 
lature formerly  possessed  have  been  largely  shorn  away,  but 
the  present  system  of  appointment  is  a  compromise  between 
legislative  and  executive  control,  which,  in  practice,  often 
transfers  the  real  control  to  the  invisible  powers  behind  the 
government.  In  order  that  the  governor's  control  over  the 
administration  may  be  increased,  it  is  almost  essential  that 
there  should  be  a  greater  concentration  of  the  power  of  ap- 
pointment in  his  hands. 

The  officers  whose  appointment  may  be  made  by  the  gov- 
ernor, or  governor  and  senate,  are,  as  already  pointed  out, 
principally  state  executive  and  administrative  officers.  In  the 
national  government,  judges  have  always  been  appointed  by 
the  President  and  senate.  In  some  of  the  older  states  the  gov- 
ernor at  first  also  appointed  judges,  as,  for  example,  in  New 
York,  prior  to  1847.  This  power  has,  however,  in  nearly 
all  states  been  transferred  to  the  electorate,  except  in  a  few, 
principally  New  England,  states,  where  the  governor,  with 
consent  of  council,  still  appoints  judges  of  the  highest  state 
courts.  Dissatisfaction  with  the  working  of  the  elective  sys- 
tem, however,  is  causing  an  increased  sentiment  in  favor 
of  a  return  to  the  appointive  system.  It  has  been  proposed  that 
the  governor  should  be  allowed  to  recommend  candidates  for 

'^  Reflections  on   the  Changes  Which  May  Seem  Necessary  in   the 
Constitution  of  New  York,  p.  26  (1867). 

92 


THE  GOVERNOR'S  ADMINISTRATIVE  POWERS 

judgeships  to  the  people,  who  should  vote  for  them  upon 
a  non-partisan  ballot,  on  which  the  candidates  recommended 
by  the  governor  should  be  so  designated.'^  The  expectation  is 
that,  in  practice,  this  would  be  tantamount  to  a  real  appointive 
system.  A  committee  of  the  New  York  County  Lawyers' 
Association,  headed  by  Joseph  H.  Choate,  would  go  farther, 
and  recommends  that  all  the  judges  of  the  Supreme  Court 
and  of  the  Court  of  Appeals  of  that  state  be  appointed  by 
the  governor,  with  the  consent  of  the  senate. 

As  a  result  of  the  system  of  decentralized  administration 
in  the  American  states,  or  as  part  and  parcel  of  it,  we  find  that 
the  governor  has  very  little  power  of  appointing  local  of- 
ficers. The  widespread  feeling  in  favor  of  home  rule  and 
the  prevailing  habit  of  electing  administrative  ofiicers  by  popu- 
lar vote  operate  to  prevent  the  vesting  of  this  power  in  the 
governor.  The  principal  exception  to  this  rule  is  the  power 
granted  to  the  governor  in  a  few  states,  such  as  Missouri, 
Massachusetts,  and  Maryland,  to  appoint  the  board  of  police 
commissioners  for  the  most  populous  city  in  the  state.^'^  Here 
and  there  the  governor  has  also  been  authorized  to  make  ap- 
pointments to  miscellaneous  local  offices,  such  as  boards  of 
county  school  commissioners,^*  county  boards  of  elections,^^ 
local  health  officers,^''  and  county  assessors.^^  He  is  also  em- 
powered in  some  states  to  appoint  justices  of  the  peace  and 
police  magistrates  and  to  fill  vacancies  occurring  in  the  offices 
of  sheriff  and  justice  of  the  peace.^^ 

^  The  Short  Ballot  in  the  State  of  New  York,  pp.  8-10. 

"  Such  boards,  however,  are  in  reality  state  officers  with  local  func- 
tions. 

^  Maryland  Code,  Art.  77,  Act  of  1892,  Ch.  341. 

^'New  Jersey  Public  Laws,  1898,  p.  240. 

**  New  Jersey  Public  Laws,  1900,  p.  104. 

"Oklahoma  Laws  1910-11,  Ch.  152,  Sect.  i. 

"  In  the  New  York  Constitutional  Convention  of  1821,  Martin  Van 
Buren  and  Rufus  King  argued  very  forcibly  in  favor  of  giving  the 
governor  the  power  of  appointing  sheriffs  and  local  officers  but  their 
view  has  not  prevailed.    Proceedings  and  Debates,  pp.  341-342;  386-387. 

93 


AMERICAN  STATE  ADMINISTRATION 

The  governor  generally  has  the  power  of  filling  vacancies 
in  state  offices  whenever  they  occur,  provided  no  other  method 
of  filling  the  vacancy  is  specifically  provided  by  the  consti- 
tution or  laws.  Such  appointments  tend  to  be  more  free  from 
the  control  of  the  senate  than  in  the  case  of  original  appoint- 
ments. They  sometimes  do  not  require  the  confirmation  of 
the  senate  at  all,^^  and,  in  other  cases,  the  governor  may  make 
temporary  appointments  during  the  recess  of  the  senate  until 
the  next  meeting  of  that  body,  when  he  shall  make  nominations 
subject  to  the  usual  confirmation  of  the  senate.  There  is  a 
tendency  to  confine  the  governor's  power  of  filling  vacancies 
to  appointive  officers,  but  in  some  cases  he  may  also  fill  vacan- 
cies in  elective  offices.^* 

In  connection  with  the  governor's  power  of  appointment, 
it  should  be  mentioned  that  the  process  usually  consists  of 
three  steps,  the  nomination  by  the  governor,  confirmation  by 
the  senate,  and  the  issuance  of  a  commission  by  the  governor 
to  the  appointee.  It  does  not  necessarily  follow  that,  after 
the  first  two  steps  have  been  completed,  the  third  must  follow. 
The  issuance  of  the  commission  by  the  governor  has  been 
held  to  be  a  discretionary  act,  which  he  may  or  may  not 
perform.^^ 

It  will  be  seen  from  this  review  that  the  governor's  power 
of  appointment  of  administrative  officers  is  subject  to  seri- 
ous limitations  in  respect  both  to  its  scope  and  to  its  efficacy 
in  action.  Even,  however,  if  these  limitations  did  not  exist, 
the  appointing  power,  in  itself,  would  be  found  to  be  an 
imperfect  means  of  administrative  control.  If  the  exercise 
of  the  governor's  power  over  administrative  officers  were 
completely  exhausted  in  the  act  of  appointment,  his  appointees, 
unless  candidates  for  reappointment,  having  nothing  further 

"See  State  vs.  Finnerud,  7  S.  D.,  237  (1895)  ;  and  State's  Prison  vs. 
Day,  124  N.  C,  362  (1899). 
"  See,  for  example,  Constitution  of  Pennsylvania,  Art.  IV,  Sect.  8. 
*  Harrington  vs.  Pardee,  i  Calif.  App.,  278  (1905). 

94 


THE  GOVERNOR'S  ADMINISTRATIVE  POWERS 

either  to  fear  or  to  gain  from  him,  might  assume  an  attitude 
of  independence  calculated  to  interfere  seriously  with  effec- 
tive administration.  It  is  doubtless  true  that,  in  the  case  of 
many,  if  not  the  majority,  of  state  administrative  officers 
appointed  by  the  governor,  his  control  over  them  ceases  with 
the  act  of  appointment.  A  growing  realization  of  the  extent 
of  the  evils  and  disadvantages  arising  from  this  arrangement, 
however,  has  within  recent  years  brought  about  the  adoption 
in  a  number  of  states  of  certain  measures  designed  to  give 
the  governor  some  control  over  such  officers  after  they  are 
appointed.  Such  measures  consist  of  provisions  extending  to 
the  governor  some  degree  of  direction  and  supervision  over 
them  while  in  office,  and  of  suspension  and  removal  from 
office. 

In  accordance  with  general  principles  previously  stated, 
the  governor  has  no  legal  powers  of  supervision  or  direction 
except  in  so  far  as  they  are  specifically  granted  by  the  con- 
stitution or  statutes.  The  governor  has  no  power  of  or- 
ganizing the  administrative  services  of  the  state  into  depart- 
ments, nor  can  he,  in  the  interests  of  efficiency,  transfer  a 
particular  function  or  service  from  one  department  to  an- 
other. These  matters,  as  well  as  the  specific  duties  to  be 
performed  by  state  administrative  officers,  are  largely  regu- 
lated by  law.^^  Although  this  is  the  general  rule,  neverthe- 
less some  progress  has  been  made  toward  giving  the  governor 
a  certain  degree  of  control  over  such  officers.  For  example, 
it  is  sometimes  provided  that  the  approval  of  the  governor 
must  be  had  for  the  appointment  of  assistants  or  deputies  to 
the  heads  of  departments  or  bureaus,  such  as  the  state  com- 
missioner of  labor,^^  or  the  state  game  commissioner;^^  or 


"Pinckney  vs.  Henegan,  2  Strob.  (S.  C),  250  (1848);  Collins  vs. 
State  8  Ind.,  344  (1856)  ;  State  vs.  Bailey,  16  Ind.,  46  (1861)  ;  Slack  vs. 
Jacob,  8  W.  Va.,  612  (1875)  '.  People  vs.  Santa  Clara  Lumber  Company 
106  N.  Y.  S.,  624  (1907). 

*'  New  Jersey  Public  Laws.  1904,  p.  168. 

"Kurd's  Illinois  Revised  Statutes,  1912,  p.  1244. 

95 


AMERICAN  STATE  ADMINISTRATION 

that  the  governor,  acting  with  other  officers,  shall  determine 
the  annual  allowance  of  a  state  board  for  expenses  within 
maximum  and  minimum  limits  fixed  by  the  legislature.^^  Some 
degree  of  supervision  also  arises  from  provisions  generally 
found  in  state  constitutions  empowering  him  to  see  that  the 
laws  are  faithfully  executed,  and  to  require  information  in 
writing  from  the  officers  in  the  executive  department  upon 
any  subject  relating  to  their  duties.  Such  requisitions  for  in- 
formation may  be  made  at  any  time.  In  addition,  such  of- 
ficers are  also  required  in  most  states  to  make  regular  reports 
to  the  governor  at  periodical  intervals.  The  officers  from 
whom  such  information  and  reports  may  be  required  include, 
in  some  states,  not  only  the  so-called  heads  of  departments, 
but  also  managers  of  state  institutions  and  lesser  administra- 
tive officers.*"  The  character  of  the  information  which  may 
be  required  in  the  reports  is  sometimes  specified,  such  as 
accounts  of  moneys  received  and  disbursed,*^  or  the  exact 
condition  of  the  public  funds  on  hand.*^  These  provisions 
may  sometimes  be  useful  in  enabling  the  governor  to  inves- 
tigate and  bring  to  light  irregularities  or  other  facts  of  a  com- 
promising character.  In  conducting  such  investigations,  the 
governor  is  sometimes  authorized  to  employ  accountants, 
subpena  witnesses,  administer  oaths,  and  require  the  pro- 
duction of  books  and  papers.*^  Nevertheless,  these  provisions 
have  not  operated  in  practice  to  give  the  governor  any  very 
eflfective,  comprehensive,  or  continuous  control  over  the  ad- 
ministration. Requests  for  information  are  apt  to  be  spas- 
modic and  special  in  character.  The  control  which  they 
exert  may  have  the  efifect  of  guarding  against  or  unearthing 

''  New  Jersey  Public  Laws,  1886,  p.  333. 

*•  Constitution  of  Illinois,  Art.  V,  Sect.  20;  of  Alabama,  Art.  V,  Sect. 
121 ;  of  Virginia,  Art.  V,  Sect.  74. 

"  Illinois  Constitution  Art.  V,  Sect.  20. 

"  South  Dakota  Compiled  Statutes,  1913,  p.  88. 

"  New  York  Consolidated  Laws,  1909,  p.  1641 ;  Constitution  of  Vir- 
ginia, Art  V,  Sect.  74.    Cf.  Attorney-General  vs.  Jochim,  99  Mich.  358. 

96 


THE  GOVERNOR'S  ADMINISTRATIVE  POWERS 

glaring  irregularities,  but  in  themselves  they  are  not  well 
adapted  positively  to  assure  efficiency  in  administration.  Fur- 
thermore, official  reports  and  answers  to  requests  may  often 
be  drawn  up  in  such  a  manner  as  to  conceal  or  gloss  over 
the  essential  facts. 

The  further  question  remains  as  to  what  can  be  done  In  case 
the  governor's  inquiries  disclose  irregularities  or  in  case  the 
officials  to  whom  they  are  addressed  make  false  reports  or 
refuse  to  report  at  all.  The  constitutions  are  usually  silent 
on  this  point.  The  Illinois  constitution,  however,  provides 
that  any  officer  who  makes  a  false  report  shall  be  guilty  of 
perjury,**  while  that  of  Alabama  declares  that  any  officer 
who  makes  a  false  report  or  fails  to  report  on  demand  is 
guilty  of  an  impeachable  offense.*^  In  case  of  these  derelic- 
tions on  the  part  of  such  officers,  therefore,  it  is  contem- 
plated that  judicial  or  legislative  rather  than  administrative 
action  shall  be  taken.  In  the  absence  of  any  power  of  sus- 
pension or  removal  there  is  little  further  that  the  governor 
can  do  directly,  except  as  far  as  possible  to  throw  the  light 
of  publicity  upon  the  facts  in  the  case. 

The  general  rule  governing  the  relations  between  the  gov- 
ernor and  other  state  executive  or  administrative  officers  is 
that  the  duties  of  the  latter  are  determined  by  law  and  not 
by  the  direction  of  the  governor.  This  is  especially  true  in 
the  case  of  elective  officers.  Where  the  action  of  such  offi- 
cers is  necessary  in  order  that  the  powers  of  the  governor 
may  be  carried  out,  or  in  order  to  validate  or  complete  any 
of  his  official  acts,  such  officers  may  be  compelled  to  act 
through  the  issuance  by  the  courts  of  the  writ  of  mandamus. 
In  general,  therefore,  the  relation  between  the  governor  and 
other  state  executive  officers  is  a  legal  rather  than  an  admin- 
istrative relation.*^ 


"  Art.  V,  Sect.  20. 
"  Art.  V,  Sect.  121. 


*"  This  point  will  be  more  fully  considered  in  Ch.  VI. 

97 


AMERICAN  STATE  ADMINISTRATION 

An  important  exception  to  this  general  rule,  however,  is 
found  in  the  governor's  power  of  removal,  which,  though  still 
insignificant  as  compared  with  that  of  the  president  of  the 
United  States,  has  nevertheless  shown  signs  of  growth  within 
recent  years.  In  no  respect,  perhaps,  does  the  power  of  the 
governor  contrast  more  strikingly  with  that  of  the  president 
than  in  respect  to  the  power  of  removal.  Although  there  is 
no  special  provision  in  the  Federal  Constitution  in  regard  to 
the  possession  by  the  president  of  a  power  of  removal,  he 
has  nevertheless  exercised  such  a  power,  with  the  exception 
of  a  comparatively  short  interval,  since  the  foundation  of 
the  government.  Upon  this  power  is  based  to  a  large  extent 
his  almost  complete  control  over  the  entire  national  adminis- 
tration. By  the  action  both  of  Congress  and  of  the  courts, 
this  power  has  been  construed  as  belonging  to  the  president 
as  growing  out  of  and  resulting  from  his  general  executive 
power.'*^ 

The  state  governor,  on  the  other  hand,  is  not  considered 
as  having  any  power  of  removal,  either  as  a  result  of  his  gen- 
eral executive  power,  or  as  an  incident  of  his  power  of  ap- 
pointment.*^ What  power  of  removal  the  governor  has  must, 
as  a  general  rule,  be  derived  from  some  specific  provision  of 
the  constitution  or  statutes.  This  necessity  of  a  special  grant 
in  order  that  the  power  may  be  exercised  has  operated  to 
prevent  a  rapid  extension  of  the  governor's  removal  power. 
The  growth  of  the  power  has  also  been  hindered  by  other 
causes.    For  example,  a  theory  which,  though  now  discredited, 


"  Goodnow,  Principles  of  Administrative  Law  of  the  U.  S.,  pp.  76- 
77;  Parsons  vs.  U.  S.,  167  U.  S.,  324. 

*'  Field  vs.  People,  3  III.,  79;  Dubuc  vs.  Vess,  19  L.  R.  A.,  210;  State 
vs.  Rhame,  75  S.  E.,  881  (1912)  ;  Nicholson  vs.  Thompson,  5  Rob.  (La.), 
367  (1843);  McDonald  vs.  Brunett,  92  S.  C,  469  (1912).  But  see 
Keenan  vs.  Perry,  24  Tex.,  259  (1859),  where  it  was  said  that  when 
the  tenure  of  an  office  is  not  fixed  by  the  constitution  or  statutes  and 
there  is  no  provision  for  removal,  the  continuance  of  the  incumbent  in 
office  is  determinable  at  pleasure  by  the  governor. 

98 


THE  GOVERNOR'S  ADMINISTRATIVE  POWERS 

was  formerly  held  in  some  quarters  and  even,  at  times,  recog- 
nized by  the  courts  was  to  the  effect  that  an  appointee  to  an 
office  acquires  a  vested  right  thereto,  and  is  not  removable 
except  by  the  methods  provided  in  the  constitution.*®  This 
naturally  hindered  the  development  of  the  governor's  power 
of  removal.  It  should  also  be  noted  that,  in  respect  to  local 
officers,  the  prevalence  of  the  doctrine  of  home  rule  has  stood 
in  the  way  of  any  large  extension  of  this  power.  Further- 
more, during  our  early  history,  the  terms  of  office  of  execu- 
tive and  administrative  officers  were  usually  very  short,  fre- 
quently extending  no  longer  than  one  year.  Under  these  cir- 
cumstances there  was  not  so  much  need  or  opportunity  for 
the  exercise  of  the  power  of  removal.  When  the  length  of 
the  terms  of  executive  officers  was  specified  in  the  constitu- 
tion, as  was  frequently  the  case,  such  officers  were  remova- 
ble only  by  the  methods  provided  in  the  constitution,  and, 
if  the  constitution  did  not  give  the  governor  the  removal 
power  in  such  cases,  the  legislature  could  not  confer  it  upon 
him.*^"  This  was  deemed  to  be  especially  true  in  the  case  of 
elective  officers. ^^  A  more  important  influence,  however,  in 
hindering  the  growth  of  the  governor's  power  of  removal 
was  the  fear  that  it  might  be  used  for  partisan  purposes, 
and  thus  introduce  the  spoils  system  which  obtained  in  the 
national  government,  A  rather  widespread  feeling  was  ex- 
pressed by  a  member  of  the  Maryland  Constitutional  Conven- 
tion of  185 1,  who  declared  that  he  was  unwilling  to  make 
the  tenure  of  competent  and  faithful  officers  dependent  upon 
the  breath  of  the  governor.  "A  power,"  said  he,  "to  cut 
short  the  political  existence  of  a  meritorious  officer  in  the 
midst  of  the  term  for  which  he  was  appointed,  by  the  mere 

*'Cf.  Collins  vs.  Tracey,  36  Tex.,  546  (1872). 

°°  Cf .  Commonwealth  vs.  Gamble,  62  Pa.  St.,  343  (1869);  State  vs. 
Kipp,  10  S.  D.,  495  (1898). 

"  See  Debates  and  Proceedings  of  the  New  York  Constitutional 
Convention  of  1846,  p.  157.     (Atlas  edition.) 

99 


AMERICAN  STATE  ADMINISTRATION 

ipse  dixit  of  a  party  governor,  was  a  dangerous  incentive  to 
mal-administration."  ^- 

In  spite  of  these  difficulties,  however,  it  was  early  seen 
by  far-sighted  observers  that  the  governor's  power  of  removal 
must  be  extended  if  he  is  properly  to  be  held  responsible  for 
the  conduct  of  the  administration.^^  Although  their  views 
gained  headway  but  slowly,  some  progress  was  gradually  made 
in  extending  this  power  to  the  governor.  Even  as  early 
as  1776,  the  Maryland  Constitution  of  that  year  gave  the 
governor  a  considerable  power  of  suspension  and  removal 
over  certain  classes  of  civil  and  mihtary  officers,^*  and  in 
the  constitution  of  that  state,  adopted  in  1851,  this  power 
was  continued  and  extended. ^^  In  New  York  the  governor 
has  usually  had  a  larger  power  of  removal  of  local  officers 
than  in  other  states.  By  the  constitution  of  1821  the  gov- 
ernor of  that  state  was  empowered  to  remove  from  office 
sheriffs,  county  clerks  and  coroners.^*  To  this  list  the  con- 
stitution of  1846  added  the  district  attorney,^'^  and,  by  the 
same  instrument,  the  governor  was  given  the  power  to  suspend 
the  state  treasurer  during  the  recess  of  the  legislature.^* 
The  governor  of  Pennsylvania  was  authorized,  by  the  con- 
stitution of  1838,  to  remove  at  pleasure  the  secretary  of  the 
commonwealth.^^  The  Wisconsin  Constitution  of  1848  copied 
almost  verbatim  the  New  York  Constitution  of  two  years 
before  in  giving  the  governor  a  large  power  of  removing 
county  officers,  such  as  sheriffs,  coroners,  registers  of  deeds, 

"  Debates  and  Proceedings  of  the  Maryland  Constitutional  Conven- 
tion of  1851,  i,  p.  471. 

"^  See  remarks  of  Chancellor  Kent  and  Judge  Van  Ness  in  the  New 
York  Constitutional  Convention  of  1821,  Proceedings  and  Debates,  pp. 
389-390. 

"  Thorpe,   Charters  and  Constitutions,  p.    1699. 

'^Ibid.,  p.  1720. 

'^  Ibid.,  pp.  2645-2646. 

"Ibid.,  p.  2670.     See  also  amendment  of  1874,  Ibid.,  p.  2692. 

•'  Ibid.,  p.  2662. 

''Ibid.,  p.  3107. 

100 


THE  GOVERNOR'S  ADMINISTRATIVE  POWERS 

and  district  attorneys.®"     By  an  act  of  the  New  York  legis- 
lature,   passed    in    1823,    a    large    number    of    administrative 
officers,  both  state  and  local,  were  made  removable  from  office 
by  the  senate,  upon  the  recommendation  of  the  governor.®^ 
This  brief   survey  will  indicate  that,  prior  to  the  middle 
of   the   nineteenth   century,   some   progress   had   been   made 
toward  vesting  in  the  governor  a  power  of  removal.     Since 
that  date  the  progress  in  this  direction  has  been  somewhat 
more  rapid.    An  important  amendment  to  the  Michigan  Con- 
stitution was  adopted  in  1862  as  the  result  of  the  discovery 
that,  although  the  state  treasurer  was  a  defaulter,  the  governor 
had  no  power  of  removing  him  from  office.    This  object  could 
be  effected  only  by  impeaching  him,  but,  as  the  legislature 
was  not  in  session,  to  do   so  would  burden  the  state  with 
the  expense  of  an  extra  session.    The  amendment  as  adopted 
authorized  the  governor,  during  the  recess  of  the  legislature, 
to  investigate  the  acts  of  any  public  officer  and  to  remove, 
from  office  for  neglect  of  duty  or  malfeasance  in  office  any 
state  executive  or  administrative  officer,  whether  elective  or 
appointive.''^    This  provision,  which  in  substance  was  carried 
over  into  the  constitution  of  1909,'^^  brought  a  large  number 
of  officers  under  the  removal  power  of  the  governor,  and  is 
noteworthy  in  its  inclusion  of  elective,  as  well  as  appointive, 
officers.     Illinois,  by  her  constitution  of  1870,  gave  the  gov- 
ernor power  to  remove  any  officer  whom  he  might  appoint  in 
case   of    incompetency,   neglect   of    duty    or    malfeasance    in 
office.®*    The  object  of  this  provision  was,  in  the  view  of  the 
chairman  of  the  committee  of  the  constitutional  convention. 


'"Ibid.,  p.  4085. 

"New  York  Session  Laws  of  1823,  Ch.  cxcvii,  p.  244. 
""  Thorpe,  Charters  and  Constitutions,  p.  i960.     Construed  in  Dullam 
vs.  Willson,  53  Mich.,  392  (1884);  Attorney  vs.  Jochim,  99  Mich.,  358 

(1894). 

"  Art.  9.  Sect.  7. 

"Art.  V,  Sect.  12.     Construed  in  Wilcox  vs.  People  ex  rel.  Lipe,  90 
111.,  186  (1878). 

lOI 


AMERICAN  STATE  ADMINISTRATION 

who  introduced  it  in  that  body,  that  the  executive  should  have 
some  power  as  well  as  responsibility.  "If,"  said  he,  "the 
governor  is  first  to  appoint  men  and  be  held  responsible  for 
his  appointments,  and  then,  in  case  they  should  prove  failures, 
not  have  power  to  remove  them,  what  a  ridiculous  spectacle 
would  be  presented.  This  power  of  removal  is  for  the  ben- 
efit of  the  people  and  for  their  security  and  not  for  the  glory 
of  the  executive."  ®^  Unfortunately,  the  provision  is  not  well 
adapted  to  accomplish  the  object  of  giving  the  governor  a 
comprehensive  and  efifective  control  over  the  state  adminis- 
tration, because  it  does  not  go  far  enough.  In  order  to  accom- 
plish this  object,  it  would  be  necessary  that  the  governor  be 
given  power  to  remove  elective,  as  well  as  appointive,  execu- 
tive officials.  The  Pennsylvania  Constitution  of  1873  gives 
the  governor  power  to  remove  officers  whom  he  can  appoint, 
and  also  many  elective  officers  "on  the  address  of  two-thirds 
of  the  senate."  ^'^  Provisions  similar  to  those  of  Illinois  and 
Pennsylvania  now  exist  in  some  other  states,  including  Mary- 
land, Nebraska,  Colorado,  W.  Virginia,  Arkansas  and  Florida. 
The  removal  power  of  the  governor  has  been  extended,  not 
only  by  constitutional  provision,  but  also  by  legislative  action. 
The  fact  that  the  constitution  gives  the  governor  the  power  to 
remove  those  officers  whom  he  may  appoint  does  not  neces- 
sarily preclude  the  legislature  from  conferring  upon  the  gov- 
ernor the  power  of  removing  other  officers  not  appointed  by 
him.^'^  In  case  of  officers  created  by  the  legislature,  that  body 
may  authorize  the  governor  to  remove  the  incumbents.®®      Some 

^Debates  and  Proceedings  of  the  Illinois  Constitutional  Convention 
of  1870,  i,  p.  748. 

**Art.  VI,  Sect.  4.  Construed  in  Lane  vs.  Commonwealth,  103  Pa. 
St.,  481  (1883). 

"  See  Kurd's  Revised  Statutes  of  Illinois,  1912,  p.  810;  and  People  t/j. 
Nellis,  249  111.,  12  (191 1 ). 

''Evans  vs.  Populus,  22  La.  Ann.,  121  (1870);  Lynch  vs.  Chase,  55 
Kan.,  367  (1895)  ;  People  vs.  Stuart,  74  Mich.,  411  (1899)  ;  People  vs. 
Cazneau,  20  Calif.,  504. 

102 


THE  GOVERNOR'S  ADMINISTRATIVE  POWERS 

state  constitutions,  moreover,  expressly  authorize  the  legisla- 
ture to  make  provision  for  removals  from  office.**  There  are 
many  instances  in  which  the  legislatures  have  acted  in  pur- 
suance of  this  power,  and,  as  a  result  of  such  statutes,  a  con- 
siderable number  of  officers  not  appointed  by  the  governor 
have  been  made  removable  by  him  in  New  York,  Ohio,  Minne- 
sota, South  Dakota,  Wisconsin,  Texas,  Washington  and  other 
states/" 

In  spite,  however,  of  the  numerous  instances  where  the 
governor  may  exercise  the  removal  power,  it  still  remains 
true,  on  the  whole,  that  this  power  is  rather  narrowly  limited. 
The  limitations  upon  the  power  may  be  said  to  arise  from 
two  main  causes:  first,  through  withholding  the  grant  of  the 
power  either  altogether  or  with  respect  to  certain  classes  of 
officers  and,  secondly,  through  placing  restrictions  upon  the 
methods  which  must  be  employed  in  exercising  the  power  and 
upon  the  finality  of  such  exercise.  That,  in  spite  of  constitu- 
tional and  statutory  provisions,  the  power  of  the  governor  of 
New  York  to  remove  from  office  is  still  seriously  circum- 
scribed is  indicated  by  the  oft-quoted  statement  of  former 
Governor  Hughes  of  that  state,  in  his  inaugural  address  of 
1909,  that  there  is  a  "wide  domain  of  executive  or  administra- 
tive action  over  which  he  has  no  control  or  only  slight  con- 
trol." ''^  Governor  Russell  of  Massachusetts  declared  in  1892 
that  "more  than  one  hundred  and  twenty  important  executive 
officers  are,  during  a  tenure  of  office  varying  from  three  to 
eight  years,  beyond  the  reach  and  control  of  any  executive 

''Constitution  of  New  York,  Art.  X,  Sect.  7;  of  Ohio,  Art.  II,  Sect. 
38;  of  Texas,  Art.  IV,  Sect.  25. 

"  See,  for  example,  Consolidated  Laws  of  New  York,  1909,  iv,  p. 
3188;  Session  Laws  of  Ohio,  1913,  p.  851;  General  Statutes  of  Minne- 
sota, 1913,  p.  1269,  Sect.  5724;  Compiled  Statutes  of  South  Dakota, 
1913,  p.  426;  Statutes  of  Washington,  1910,  Sect.  8994.  For  further  de- 
tails ari  references,  consult  American  Political  Science  Reznew,  viii, 
pp.  623-626. 

'"'Public  Papers  of  Governor  Hughes,  1909. 

103 


AMERICAN  STATE  ADMINISTRATION 

power."  '^^  Governor  Fort  of  New  Jersey,  in  his  annual  mes- 
sage to  the  legislature  of  1909,  complained  that  "it  is  humiliat- 
ing for  the  chief  executive  of  a  great  state  to  feel  that,  no 
matter  what  the  cause,  nor  how  derelict  in  duty  a  public 
official  may  be,  there  is  no  power  of  removal  or  method  to 
remedy  the  condition."  A  striking  instance  of  the  impotence 
of  the  governor  of  New  Jersey  in  this  respect  occurred  in 
1873.  The  police  commissioners  of  Jersey  City,  who  were 
state  officers  and  charged  by  the  state  with  the  enforcement  of 
law  in  that  city,  were  tried  and  convicted  in  the  county  court 
upon  indictment  for  conspiracy  to  defraud  the  city  of  public 
funds.  The  Governor,  with  the  laudable  intent  of  ridding  the 
state  administration  of  officers  whose  unfitness  had  thus  been 
unequivocally  demonstrated,  undertook  to  remove  them  from 
office.  The  Supreme  Court  of  the  state,  however,  held  that  the 
right  to  remove  a  state  officer,  even  for  proved  malfeasance 
in  office,  did  not  belong  to  the  executive,  that  the  act  of  re- 
moval was  judicial  in  character  and  belonged  only  to  the  court 
of  impeachment.^^  The  result  was  that,  until  the  cumbrous 
machinery  of  impeachment  could  be  brought  into  operation, 
the  people  of  the  state  had  to  endure  the  unedifying  spectacle 
of  the  machinery  of  law  enforcement  or  non-enforcement  in 
the  hands  of  men  who  not  only  ought  to  have  been,  but  were, 
convicts. 

The  absence  of  the  removal  power  in  the  governor  is  apt 
also  to  produce  a  serious  disharmony  in  administration  when, 
as  sometimes  happens,  important  executive  or  administrative 
officers  serve  for  longer  terms  than  does  the  governor  himself, 
and  may  also  belong  to  the  opposite  political  party.  A  re- 
cently elected  governor  of  New  Jersey  was  much  embarrassed 
to  find,  upon  his  induction  into  office,  that  his  attorney-general, 

"  Address  to  the  Legislature,  1892,  quoted  by  Reinch,  Readings  on 
American  State  Government,  p.  4. 

"  Police  Commissioners  of  Jersey  City  vs.  Pritchard,  36  N.  J.  L.  (7 
Vroom),  loi. 

104 


THE  GOVERNOR'S  ADMINISTRATIVE  POWERS 

whom  he  could  not  remove,  would  hold  office  for  a  longer 
term  than  his  own,  and  had  presided  over  the  party  conven- 
tion which  had  nominated  his  leading  opponent  in  the  guber- 
natorial campaign.  Under  these  circumstances,  it  could  hardly 
be  expected  that  cooperation  between  them  would  be  rendered 
easy  and  natural. 

With  regard  to  limitations  as  to  the  classes  of  officers  whom 
the  governor  may  remove,  it  is  true  as  a  general  principle 
that  he  has  less  power  of  removal  over  elective  than  over 
appointive  officers,  and  less  over  local  than  over  state  officers. 
It  has  usually  been  thought  that,  when  an  officer  derives  his 
authority  from  a  source  as  high  as  that  by  virtue  of  which 
the  governor  himself  acts,  he  should  not  be  subject  to  re- 
moval by  the  latter,  except  in  exceptional  cases.  The  appli- 
cation of  this  idea  has  been  a  potent  cause  of  disintegration 
in  the  administration,  but  the  need  for  greater  concentration 
of  authority  has  brought  a  slight  reaction.  The  doctrine, 
however,  though  not  so  prevalent  as  formerly,  is  still  widely 
held. 

In  some  states,  including  New  York,  Minnesota,  Ohio, 
Michigan,  Wisconsin  and  South  Dakota,  the  governor,  as 
already  noted,  has  a  power,  varying  in  extent,  of  removing 
from  office  county,  municipal  and  other  local  officers.  In 
most  states,  however,  the  governor  has  little  or  no  control, 
through  removal,  over  local  officers.  Since  the  states  depend, 
to  a  large  extent,  for  the  enforcement  of  their  laws  upon 
local  officers,  the  activity  or  inaction  of  such  officers  in  en- 
forcing the  law  is  a  matter  of  direct  concern  to  the  state,  and, 
in  case  of  neglect  of  duty  on  their  part,  the  governor  should 
have  the  right  to  remove  them.'^*  In  spite  of  this  considera- 
tion, however,  governors  have  been  granted  comparatively 
little  power  of  removing  local  officers,  because  of  the  wide- 
spread feeling  that  the  exercise  of  such  a  power  would  con- 

"  For  a  further  consideration  of  this  topic,  see  below,  Chs.  XV  and 
XVI. 

105 


AMERICAN  STATE  ADMINISTRATION 

stitute  a  violation  of  the  principle  of  home  rule  and  local 
self-government.  It  has  been  held,  however,  that  the  pro- 
vision of  the  New  York  City  Charter,  authorizing  the  gov- 
ernor to  remove  a  borough  president  in  the  same  manner  as 
the  mayor,  does  not  violate  the  home  rule  provisions  of  the 
constitution  of  that  state/"^  But  any  considerable  extension 
of  the  governor's  power  to  remove  local  officials  would  be 
apt  to  come  into  conflict  with  the  principle  of  home  rule,  unless 
it  were  confined  to  officers  whose  functions  primarily  concern 
the  state,  rather  than  the  locality.  Local  officers  are  more 
frequently  elective  than  appointive,  and  it  is  thought  by 
many  persons  that,  since  they  are  closer  to  the  people  than 
are  state  officers,  the  people  can  the  better  judge  of  their 
conduct  in  office  without  state  interference.  It  is  doubt- 
less largely  on  account  of  this  consideration  that  governors, 
even  when  possessing  the  power  of  removing  purely  local 
officers,  have  seldom  exercised  it,  except  in  the  most  flagrant 
cases.''® 

The  exercise  by  the  governor  of  the  power  of  removal  may 
be  either  summary  or  only  for  cause.  The  exercise  of  this 
power  by  the  President  of  the  United  States  is  practically 
always,  except  for  officials  in  the  classified  service,  of  a  sum- 
mary character."^  In  the  case  of  the  governor,  however,  the 
possession  of  summary  power  is  exceptional.  It  exists  where 
the  officer  whom  it  is  proposed  to  remove  holds  his  office  at 

■"People  vs.  Ahearn,  196  N.  Y.,  221  (1909).  On  the  power  of  the 
governor  of  New  York  to  remove  local  election  officials,  see  Bench 
and  Bar,  Vol.  24    (1911),  pp.    1-5. 

"The  governor  of  New  York  has  seldom  exercised  his  power  of  re- 
moving sheriffs  and  mayors,  but  Governor  Odell  removed  one  sherif? 
of  Kings  County,  and  district  attorneys  have  occasionally  been  re- 
moved. In  1910  the  governor  of  Ohio  removed  the  Mayor  of  Newark, 
Ohio,  for  failing  to  preserve  order.  Under  Michigan  Comp.  Laws, 
1897,  Sect.  1 159,  the  governor  may  remove  a  mayor.  Germaine  vs. 
Ferris,  142  N.  W.,  738. 

"  R.  L.  Ashley,  Removal  of  Public  Officials,  in  McLaughlin  and  Hart, 
Cyclopedia  of  American  Government,  iii,  p.  I79- 

106 


THE  GOVERNOR'S  ADMINISTRATIVE  POWERS 

the  pleasure  of  the  governor  without  specified  term,  as  in 
the  case  of  the  secretary  of  the  commonwealth  of  Pennsyl- 
vania, or  where  the  statute  authorizes  the  governor  to  remove 
without  assigning  reasons  therefor.'^^  Removal  in  such  case 
may  be  effected  through  the  mere  appointment  of  the  suc- 
cessor. In  the  large  majority  of  cases,  however,  the  consti- 
tutions and  statutes  conferring  this  power  provide  that  it  may 
be  exercised  for  cause,  either  for  any  good  and  sufficient 
cause  or  for  specified  causes,  such  as  incompetency,  neglect 
of  duty,  or  malfeasance  in  ofifice.  Where  this  is  the  case,  or 
where  the  ofBcer  holds  during  good  behavior,  the  important 
questions  arise  as  to  what  methods  the  governor  must  follow 
in  determining  the  existence  of  the  specified  causes  and 
whether  his  determination  is  final  or  subject  to  review  by 
some  other  body. 

It  frequently  happens  that  no  method  is  provided  in  the 
constitutions  or  statutes  for  the  determination  of  the  exist- 
ence of  the  specified  causes.  Under  such  circumstances,  it 
has  sometimes  been  held  that  the  governor  may  adopt  such 
mode  of  procedure  as  he  may  deem  proper  and  right,  and  it 
is  not  for  the  courts  to  dictate  to  him  in  what  manner  he  shall 
perform  the  duty.  Therefore,  no  written  charge,  notice  or 
formal  trial  is  necessary,  though  such  may,  as  a  matter  of 
custom,  be  accorded.^^  The  weight  of  judicial  opinion,  how- 
ever, is  to  the  effect  that  removal  cannot  take  place  "without 
reasonable  notice,  without  any  charge  or  specification,  and 
without  any  hearing  or  opportunity  given  to  the  officer  to 
make  his  defense."  ®°     This  position  is,  a  fortiori,  taken  by 

"  As  in  Compiled  Statutes  of  South  Dakota,  1913,  p.  426,  and  in  Min- 
nesota General  Statutes,  1913,  p.  828.  Cf.  Tonart  vs.  State,  56  So.,  211 
(1911). 

"Wilcox  vs.  People,  90  111.,  186  (1878)  ;  Keenan  vs.  Perry,  24  Tex., 
253  (1859);  State  vs.  Cheetham,  19  Wash.,  330  (1898);  State  vs.  Sa- 
maulia,  33  La.  Ann.,  446  (1886);  State  vs.  Hawkins,  44  Ohio  St.,  98 
(1886);  Trimble  vs.  People,  19  Colo.,  187   (1893). 

^''Dullam  vs.  Willson,  53  Mich.,  392  (1884)  ;  Page  vs.  Hardin,  47  Ky., 

107 


AMERICAN  STATE  ADMINISTRATION 

the  courts  when  the  constitutions  or  statutes  specifically  re- 
quire notice  and  hearing  of  charges.     A  recent  case  illustrat- 
ing this  point  arose  out  of  the  attempt  of  the  Governor  of 
Wisconsin  to  remove  from  office  the  state  commissioner  of 
insurance  and  appoint  his  successor.     The  Supreme  Court  of 
Wisconsin  held  that,  although  the  Governor  had  power  to  re- 
move the  commissioner   from   office,   and  although  the  acts 
of  the  governor  within  the  exercise  of  his  lawful  authority 
are  not  subject  to  judicial  review,  nevertheless  his  power  to 
remove  a  state  officer  is  subject  to  the  constftutional  guar- 
anty of  due  process  of  law,  which  requires  a  hearing  at  which 
the  officer  whom  it  is  proposed  to  remove  may  have  an  op- 
portunity to  defend  himself  against  any  charges  which  may 
be  brought  against  him.*^     It  is  to  be  noted  that,  in  conduct- 
ing such  hearing  or  investigation,  and,  as  a  result  thereof, 
removing   from  office  the  officer  against  whom  the  charges 
have  been  brought,  the  governor  performs  not  a  judicial,  but 
an  executive  act  as  the  result  of  a  quasi- judicial  proceeding.®^ 
Were  it  otherwise  the  governor  would  be  estopped  from  per- 
forming the  act,  as  in  violation  of  the  principle  of  separation 
of  powers,   or  else   its   exercise  would  be   surrounded  with 
more  formalities  than  are  now  required.     In  reviewing  the 
action  of  the  governor  in  removing  an  officer,  the  courts  con- 
fine themselves  to  passing  upon  the  regularity  of  the  proceed- 
ings and  to  determining  whether  the  formalities  required  by 
the  constitution  or  statute  have  been  complied  with  by  him. 
The  governor  is  the  exclusive  judge,  so  far  as  the  courts  are 
concerned,  of  the  sufficiency  of  the  proof  of  the  charges,  and 
his  findings  and  consequent  act  of  removal  are  not  reviewable 

648  (1848)  ;  People  vs.  Denman,  65  Pac,  455  (1905)  ;  Commonwealth 
vs.  Slifer,  25  Pa.  St.,  23  (1855)  ;  Benson  vs.  People,  10  Colo.  App.,  175 
(1897);  Ekern  vs.  McGovern,  154  Wis.,  157  (1913).  For  additional 
cases,  see  Columbia  Lazv  Review,  Vol.  13   (1913),  p.  754. 

"Ekern  vs.  McGovern,  142  N.  W.,  595   (1913). 

'*  Matter  of   Guden,   171   N.  Y.,  529;   Cameron  vs.  Parker,  2  Okla., 
277  (1894). 

108 


THE  GOVERNOR'S  ADMINISTRATIVE  POWERS 

by  the  courts. ^^  During  the  removal  proceedings  the  gover- 
nor may  usually  suspend  the  officer  from  office  either  as  the 
result  of  express  authorization  or,  occasionally,  as  incidental 
to  the  pow^er  of  removal.**  If,  as  a  result  of  his  investigation 
of  the  charges,  the  governor  decides  to  remove  the  incumbent 
and  issues  his  order  of  removal  and  appoints  the  successor, 
it  sometimes  happens  that  the  incumbent  barricades  himself 
in  the  office  and  refuses  to  be  ousted.  The  question  then 
arises  as  to  the  proper  method  of  procedure  for  carrying  the 
removal  order  of  the  governor  into  effect.  Governors  have 
sometimes  attempted  to  use  force  for  this  purpose.  Some  years 
ago  the  Governor  of  Colorado,  after  a  hearing  of  charges 
against  the  police  commissioners  of  the  city  of  Denver,  issued 
an  order  removing  them  from  office  and  appointed  their  suc- 
cessors. The  commissioners,  however,  refused  to  be  ousted 
and  barricaded  themselves  in  the  city  hall,  gathering  about 
them  the  police  and  fire  force  of  the  city  for  protection.  The 
Governor  called  out  the  state  militia  to  enforce  his  order  of 
removal,  but,  the  matter  having  been  carried  into  the  courts, 
it  was  held  that  the  governor's  power  of  removal  did  not  in- 
clude as  an  incident  thereto  the  power  to  use  force  in  ousting 
the  incumbents  and  installing  the  successors.  Where  the 
persons  removed  from  office  by  the  governor  still  refuse  ac- 
tually to  vacate  it,  the  proper  remedy  is  not  the  application  of 
force  by  the  governor ;  but  the  new  appointees  should  insti- 
tute court  proceedings  to  oust  the  alleged  illegal  incumbents, 
and,  if  the  case  is  decided  adversely  to  such  incumbents  and 
they  still  refuse  to  vacate  the  office,  the  governor  may  then 
exercise  force  to  carry  out  the  decision  of  the  court. 


85 


"*  Cases  cited  and  Attorney-General  vs.   Brown,  i  Wis.  513    (1853); 
State  vs.  Cohen,  28  La.  Ann.,  645  (1876)  ;  State  vs.  Rost,  16  So.,  7y6 

(1895). 
"State  vs.  Megaarden,  88  N.  W.,  412   (1901)  ;   But,  per  contra  see 

Cull  vs.  Wheltle,  114  Md.,  58  (1910). 

^  In  re  Fire  and  Excise  Commissioners,  19  Colo.,  482  (1894)  ;  Ekern 
vs.  McGovern,  154  Wis.,  157  (1913). 

109 


AMERICAN  STATE  ADMINISTRATION 

The  power  of  the  courts,  in  reviewing  the  action  of  the  gov- 
ernor in  removing  for  cause,  is  confined,  as  we  have  seen,  to 
determining  whether  he  has  complied  with  the  legal  require- 
ments as  to  the  formalities  of  procedure,  such  as  giving  rea- 
sonable notice  and  afforded  a  hearing.  They  will  not,  as  a 
rule,  inquire  into  the  question  as  to  whether  the  charges 
adduced  warrant  the  governor  in  making  the  removal,  nor 
will  they  set  aside  his  action  on  the  ground  that  he  was  im- 
properly influenced.  The  latter  function,  however,  is  some- 
times vested  in  the  legislature  or  senate.  It  has  occasionally 
been  held  that,  where  the  governor  has  the  power  of  appoint- 
ing an  officer  subject  to  the  concurrence  of  some  other  body, 
he  can  remove  such  appointee  only  with  the  concurrence  of 
the  same  body.^^  This,  however,  is  by  no  means  necessarily 
true  unless  it  is  expressly  so  provided  by  constitution  or  stat- 
ute. Such  provisions  sometimes  do  not  go  so  far  as  to  re- 
quire the  concurrence  of  another  body,  but  merely  that  the 
reasons  for  the  removal  shall  be  reported  to  such  body.  Thus, 
it  is  required  that  the  governor  shall  file  a  statement  of  the 
reasons  for  his  action  in  removing  an  officer  in  the  office  of 
secretary  of  state  or  transmit  a  report  of  the  causes  therefor 
to  the  legislature  at  its  next  session,  or  both.^^  Under  this 
provision,  however,  no  action  on  the  part  of  the  body  to  which 
the  report  is  made  is  necessarily  contemplated.  The  principal 
object  of  the  provision  appears  to  be  to  bring  the  light  of  pub- 
licity to  bear  upon  the  reasons  which  the  governor  assigns  for 
his  actions,  to  place  him  under  a  greater  sense  of  responsi- 
bility, and  to  enable  the  people  to  judge  as  to  the  sufficiency 
of  such  reasons.  In  some  states,  however,  the  removal  power 
of  the  governor  is  subject  to  a  more  real  and  effective  check 
through  the  requirement  that  it  can  be  exercised  only  with 

*'  Finley  and  Sanderson,  American  Executive  and  Executive  Meth- 
ods, p.  94- 

"Constitution  of  Michigan,  Art.  IX,  Sect.  7;  Session  Laws  of  Utah, 
1909,  Ch.  121,  Sect.  4,  p.  290. 

IIO 


THE  GOVERNOR'S  ADMINISTRATIVE  POWERS 

the  consent  of  the  senate.  Thus,  in  Florida,  the  governor 
may  remove  for  cause  any  appointive  or  elective  officer  not 
liable  for  impeachment,  but  only  w^ith  the  consent  of  the  sen- 
ate.®^ In  New  York  the  check  upon  the  governor's  power  of 
removing  certain  officers  is  still  more  serious.  In  that  state, 
with  respect  to  a  number  of  important  officers,  the  governor  is 
limited  to  conducting  investigations  and  making  recommenda- 
tions to  the  senate  for  removal,  and  the  real  power  of  removal 
is  not  in  the  governor  but  in  the  senate.  When  it  is  proposed 
to  remove  the  secretary  of  state,  comptroller,  treasurer,  or 
attorney-general,  a  two-thirds  vote  of  all  members  elected  to 
the  senate  is  required.^^  That  such  checks  upon  the  removal 
power  of  the  governor  may  operate  seriously  to  embarrass  his 
administration  and  to  defeat  the  will  of  the  people  was  illus- 
trated in  1907  by  the  unsuccessful  attempt  of  Governor 
Hughes  of  New  York  to  remove  from  office  the  state  com- 
missioner of  insurance.  The  Governor  had  been  elected,  fol- 
lowing the  exposure  of  insurance  scandals,  mainly  to  clean 
up  such  conditions.  In  pursuance  of  this  popular  mandate 
he  requested  the  state  commissioner  of  insurance  to  resign, 
but  the  latter  refused  to  do  so.  After  a  cross-examination 
of  the  commissioner,  the  Governor,  satisfied  of  his  unfitness 
for  the  office,  recommended  to  the  Senate  that  he  be  removed. 
The  Senate,  however,  refused  to  concur  in  the  recommenda- 
tion of  the  Governor.^*'  Thus  does  the  state  business  fall  into 
a  deplorable  morass  through  the  division  of  counsels  and  the 
lack  of   concentrated   authority  over  the   administration. 

From  this  survey  of  the  governor's  removal  power  it  will 
be  seen  that,  even  in  the  limited  number  of  cases  in  which 
it  has  been  granted,  its  exercise  is  usually  hedged  about  with 

**  Constitution  of  Florida,  Art.   IV,  Sect.  15;   State  vs.  Johnson,  30 
Fla.,  499  (1892). 

*'  Consolidated  Laws  of  New  York,  1909,  iv,  p.  3187. 

"*  For  documents  and  complete  testimony  in  this  case,  see  Public  Pa- 
pers of  Governor  Hughes,  1907,  pp.  245-257  and  Appendix. 

Ill 


AMERICAN  STATE  ADMINISTRATION 

restrictions  which  tend  to  hamper  its  free  play  and  useful- 
ness. Of  the  various  means  of  administrative  control  which 
we  have  considered,  the  power  of  removal  is  by  far  the  most 
potent.  Upon  the  possession  of  this  power  the  governor 
must  largely  base  his  direction  and  control  of  the  administra- 
tion. The  potency  of  the  power  is  not  to  be  measured  merely 
by  the  frequency  of  its  exercise,  for  the  existence  of  the 
power,  as  distinguished  from  its  exercise,  is  one  of  the  most 
efficacious  means  of  administrative  control  that  can  be  de- 
vised. The  energy  with  which  the  state  business  is  man- 
aged is  largely  dependent  upon  the  extent  to  which  this 
power  is  conferred  upon  the  governor.  Such  energetic  man- 
agement is  synonymous  with  good  government.  "Energy  in 
the  executive,"  said  Alexander  Hamilton,  "is  a  leading  char- 
acter in  the  definition  of  good  government.  ...  A  feeble 
executive  implies  a  feeble  execution  of  the  government.  A 
feeble  execution  is  but  another  phrase  for  a  bad  execution; 
and  a  government  ill  executed,  whatever  it  may  be  in  theory, 
must  be  in  practice  a  bad  government."  ^^  There  can  be  little 
question  that  a  further  extension  of  the  removal  power  in 
the  hands  of  the  governor  would,  by  giving  him  larger  con- 
trol over  his  subordinates  upon  whom  he  must  depend  for 
carrying  on  the  business  of  the  state,  conduce  to  greater  effi- 
ciency of  administration.  It  is,  of  course,  true  that  the  power 
may  be  abused.  Unfortunately,  governors  may,  and  some- 
times do,  remove  administrative  officers  merely  for  political 
reasons.  Governors  sometimes  institute  investigations  into 
the  official  conduct  of  subordinate  officers  who  are  politically 
obnoxious  to  them  with  the  preconceived  intention  of  find- 
ing, if  possible,  some  plausible  reasons  for  removal,  which 
will  pass  muster  before  the  public  eye.  To  prevent  the  in- 
jection of  political  considerations  into  the  conduct  of  posi- 
tions which  are  purely  administrative  or  ministerial  in  char- 
acter, the  governor's  power  of  removal  should  probably  be 

"The  Federalist  J  No.  70,  pp.  466-467.     (Ford's  Edition.) 

112 


THE  GOVERNOR'S  ADMINISTRATIVE  POWERS 

confined  in  its  application  to  those  officers  the  exercise  of 
whose  discretionary  powers  may  affect  the  poHcy  of  the  ad- 
ministration. If,  with  this  limitation,  the  power  is  still 
abused,  the  true  remedy  for  such  derelictions  on  the  part  of 
the  governor  must  be  sought  in  his  political  responsibility  to 
the  people. 

REFERENCES  AND  COLLATERAL  READING 


American  Political  Science  Review,  viii,  pp.  623-626. 

Ashley,  R.  L,     "Removal  of  Public  Officials/'  in  McLaughlin  and 

Hart,  Cyclopedia  of  American  Government,  iii,  pp.  177-179, 
Fairlie,  J.  A.     "The   State   Governor,"  Michigan  Law  Review, 

X  (1912). 
FiNLEY,  J.  H.  and  Sanderson,  /.   F.     American  Executive  and 

Executive  Methods,  Chs.  Ill  and  VIII. 
GooDNOw,   F.   J.     Principles   of   the  Administrative  Law   of   the 

United  States,  pp.  98-108. 
Patton,  O.  K.     "Removal  of  Public  Officials  in  Iowa,"  in  Iowa 

Applied  History  Series,  \\,  pp.  389-440. 
Peterson,  H.  J.    "Selection  of  Public  Officials  in  Iowa,"  Ibid.,  ii, 

pp.  317-386. 
Reinsch,   p.  S.    Readings  on  American  State  Government,  pp. 

i-io. 


CHAPTER  V 
THE  GOVERNOR'S   SPECIAL  FUNCTIONS 

There  are  certain  miscellaneous  powers,  with  which  state 
governors  are  usually  vested,  that  are  neither  legislative  nor 
of  a  general  administrative  character.  They  consist  of  such 
powers  as  control  of  the  state  militia,  pardon  and  reprieve, 
carrying  on  relations  with  the  Federal  Government  and  with 
other  states,  calling  special  elections,  and  serving  as  ex  officio 
member  of  various  boards  and  commissions.  These  powers 
may  be  conveniently  considered  together  in  this  chapter. 

Military  Power. — In  all  of  the  states  the  governor  is  consti- 
tuted the  commander-in-chief  of  the  state  militia,  and  may, 
under  certain  conditions,  call  them  into  service.  When  in 
the  actual  service  of  the  United  States,  however,  they  are 
under  the  command  of  the  president.  In  a  number  of  states 
the  governor  is  also  made  commander-in-chief,  of  the  army 
and  navy,  but  inasmuch  as  the  states  cannot  keep  troops  or 
warships  in  time  of  peace  without  the  consent  of  Congress, 
this  power  is  ordinarily  of  no  importance  except  in  time  of 
war.  During  the  Civil  War  the  military  power  of  the  state 
governors  was  greatly  expanded.  They  acted  as  agents  of 
the  Federal  Government  in  recruiting  troops  and  sometimes 
appointed  draft  commissioners  for  the  various  counties  of 
the  state.^  The  governor  is  ordinarily  the  sole  judge  of  the 
necessity  for  calling  out  the  militia,  and  may  do  so  on  his 
own  initiative  without  the  request  or  consent  of  any  other 
civil  authority  when  he  deems  the  conditions  render  it  ex- 

*  See  Druecker  vs.  Solomon,  21  Wis.,  628  (1867). 

114 


THE  GOVERNOR'S  SPECIAL  FUNCTIONS 

pedient."  In  Arkansas,  however,  the  governor  may  exercise 
this  power  only  when  the  general  assembly  is  not  in  session. 
Probably  the  greatest  limitation  upon  the  governor's  power 
in  this  respect  is  found  in  Tennessee,  where  the  militia  can 
be  called  into  service  "only  when  the  general  assembly  shall 
declare  by  law  that  the  public  safety  requires  it."  ^  This  pro- 
vision appears  to  be  sufficiently  stringent  to  paralyze  the 
executive  arm  most  effectively.  When  the  occasion  for  call- 
ing out  the  militia  arises,  the  legislature  may  not  be  in  ses- 
sion, thus  necessitating  the  delay  of  calling  a  special  session. 
Even  if  the  legislature  is  in  session,  it  could  not  usually 
come  to  so  prompt  a  decision  in  the  matter  as  could  a  single 
executive  officer.  In  either  case,  therefore,  the  delay  in  call- 
ing out  the  militia  might  be  such  as  to  endanger  very  consid- 
erably the  peace  and  welfare  of  the  commonwealth.  The 
state  of  Tennessee  thus  loses  one  of  the  chief  advantages 
arising  from  the  prompt  and  decisive  action  of  a  single  execu- 
tive officer.  "The  command  and  application  of  the  public 
force,"  says  Chancellor  Kent,  "to  execute  law,  maintain  peace 
and  resist  foreign  invasion  .  .  .  have  always  been  exclusively 
appropriated  to  the  executive  department  in  every  well-or- 
ganized government  on  earth."  ^  The  legislature  of  Tennes- 
see, doubtless  perceiving  the  disadvantages  of  this  situation, 
passed  an  act  empowering  the  governor  to  call  out  the  militia 
when  he  deems  it  necessary  to  suppress  mobs  and  riots,  but 
the  act  was  declared  unconstitutional  by  the  supreme  court 
of  the  state.^ 

Although  the  governor  is  commander-in-chief  of  the  militia 
when  in  the  service  of  the  state,  it  is  not  necessary  that  he 
should  command  them  in  person.  This  would  ordinarily  be 
of  doubtful  propriety,  as  the  governor  is  usually  a  civilian, 

*  Franks  vs.   Smith,  142  Ky.,  232    (rgii). 

'  Constitution  of  Tennessee,  Art.  Ill,  Sect.  5. 

*  Commentaries,  i,  p.  282. 

*  Greene  vs.  State,  15  Lea  (Tenn.),  708  (1885). 

115 


AMERICAN  STATE  ADMINISTRATION 

without  extensive  military  experience.  In  Maryland  and  Ken- 
tucky the  governor  is  not  allowed  to  command  in  person,  ex- 
cept with  the  consent  of  the  legislature.  In  controlling  the 
militia  the  governor  ordinarily  acts  through  an  officer  known 
in  most  states  as  the  adjutant-general,  who  is  usually  ap- 
pointed, and  sometimes  also  removable,  by  him.  Through  him 
are  transmitted  the  directions,  rules  and  regulations  issued  by 
the  governor  relating  to  the  organized  miUtia  or  National 
Guard.  The  governor  may  also  call  out  the  unorganized  mi- 
litia, if  occasion  demands,  and  organize  them.  All  rules  and 
regulations  issued  by  the  governor  relating  to  the  militia  are, 
however,  subject  to  the  limitations  imposed  by  valid  acts  of 
the  state  legislature  and  the  concurrent  jurisdiction  of  Con- 
gress to  organize  and  discipline  the  militia.^  The  state  con- 
stabulary in  Pennsylvania,  though  subject  to  the  general  pro- 
visions of  the  legislative  act  creating  it,  is  under  the  practi- 
cally complete  direction  of  the  superintendent,  who  is  ap- 
pointed by,   and   responsible   to,   the   governor. 

The  purposes  and  objects  for  which  the  state  militia  may 
be  called  out,  as  specified  in  the  state  constitutions,  are  usu- 
ally the  same  as  those  enumerated  in  the  constitution  of  the 
United  States,  viz.,  to  execute  the  laws,  suppress  insurrections 
and  repel  invasions.  Some  states  also  specify  other  objects, 
such  as  the  protection  of  the  public  health  (Oklahoma),  the 
preservation  of  the  public  peace  (Florida  and  Wyoming), 
the  preservation  of  law  and  order  (Louisiana),  the  suppres- 
sion of  riots  (North  Carolina),  and  the  protection  of  the 
frontier  from  hostile  incursions  by  Indians  and  other  preda- 
tory bands  (Texas).  Although,  as  already  stated,  the  gov- 
ernor may  call  out  the  militia  on  his  own  initiative,  in  prac- 
tice this  is  usually  not  done  unless  such  action  is  requested 
by  the  local  civil  officers  of  the  political  subdivision  of  the 
state  in  which  disorder  exists  to  such  an  extent  that  they 

•Constitution  of  U.  S.,  Art.  I,  Sect.  i6;  Houston  vs.  Moore,  5 
Wheaton,  i. 

ii6 


THE  GOVERNOR'S  SPECIAL  FUNCTIONS 

are  unable  to  cope  with  it.  In  recent  years  the  most  frequent 
use  of  the  miHtia  has  been  to  quell  mobs  bent  upon  lynch- 
ings  and  to  put  down  disorder  incident  to  widespread  strikes 
and  other  forms  of  industrial  warfare.  In  some  of  these  in- 
stances the  power  of  the  governor  has  expanded  to  an  almost 
unprecedented  extent.  In  1903,  the  Governor  of  Colorado 
declared  a  certain  portion  of  that  commonwealth  to  be  in  a 
state  of  insurrection  and  rebellion,  as  a  result  of  which  cer- 
tain persons  were  arrested  and  detained  by  the  military  au- 
thorities acting  under  the  orders  of  the  Governor  during 
the  continuance  of  the  insurrection.  The  Supreme  Court  of 
the  state  afterwards  held  that  the  Governor's  determination 
of  the  existence  of  the  insurrection  was  not  subject  to  re- 
view by  the  courts.'^  In  taking  this  position  the  court  was 
doubtless  actuated  in  part  by  the  desire  to  avoid  a  direct  con- 
flict which  would  otherwise  have  arisen  between  the  judicial 
and  executive  departments  of  the  government.  Probably  the 
most  extreme  expansion  of  the  governor's  military  power, 
however,  arose  in  West  Virginia  in  1912,  when  the  com- 
mander-in-chief issued  a  proclamation  declaring  martial  law 
within  a  certain  district  of  the  state,  and,  acting  through  a 
military  commission  appointed  by  himself,  practically  sus- 
pended the  constitution  and  laws  of  the  state  and  exercised 
almost  dictatorial  power  within  the  prescribed  district  for  a 
period  of  nearly  eight  months.  The  acts  of  the  Governor, 
however,  were  justified  by  necessity  and  were  subsequently 
upheld  by  the  Supreme  Court  of  the  state.^ 

External  Relations. — In  respect  to  the  relation  of  the  states 
to  each  other,  the  general  principle  which  governs  the  matter 
is  that  the  states  of  the  Union  are  foreign  to  each  other 
except   in   so   far  as  this  condition   may  be  modified  by  the 

''  In  re  Moyer,  35  Colo.,  159  (1904)- 

*  See  Hatfield  vs.  Graham,  81  S.  E.,  533 ;  State  ex  rel.  Mays  vs. 
Brown,  71  W.  Va.,  527;  Ex  parte  Jones,  71  W.  Va.,  609.  For  further 
discussion  of  this  case,  see  below,  p.  441. 

117 


AMERICAN  STATE  ADMINISTRATION 

Constitution  of  the  United  States.  That  instrument  pro- 
hibits the  states  from  entering  into  any  treaty,  alHance  or 
confederation,  and  also  prohibits  them  from  entering,  except 
with  the  consent  of  Congress,  into  any  agreement  or  compact 
with  another  state,  or  with  a  foreign  power.  The  terms 
"agreement"  and  "compact,"  as  here  used,  have  been  con- 
strued to  refer  to  "the  formation  of  any  combination  tending 
to  the  increase  of  poHtical  power  in  the  states,  which  may 
encroach  upon  or  interfere  with  the  just  supremacy  of  the 
United  States."  ^  Agreements  which  are  not  of  this  charac- 
ter may  therefore  be  entered  into  without  the  consent  of 
Congress.  Just  as  between  states  in  the  family  of  nations, 
so  between  the  states  of  the  Union,  the  executive  is  the 
agent  or  organ  for  carrying  on  relations  with  other  states, 
although  legislative  authorization  or  approval  may  sometimes 
be  required. 

The  governor  is  thus  ordinarily  the  official  organ  of  com- 
munication between  the  government  of  his  own  state  and 
that  of  any  other  state  of  the  United  States.  A  specific  mat- 
ter which  brings  the  states  into  relation  with  each  other  is 
the  interstate  rendition  of  fugitives  from  justice.  The  Con- 
stitution of  the  United  States  provides  that  such  fugitive 
shall  be  delivered  up  on  demand  of  the  executive  authority 
of  the  state  from  which  he  fled,  but  fails  to  state  upon  what 
authority  the  demand  shall  be  made,  and  thus  no  obligation 
is  specifically  placed  upon  any  particular  state  officer  to  com- 
ply with  such  demand.  Congress,  however,  has  attempted  to 
supply  this  omission  in  the  Constitution  by  providing  that  it 
shall  be  the  duty  of  the  executive  authority  of  the  state  to 
comply  with  the  demand  by  causing  the  arrest  of  the  fugi- 
tive and  his  delivery  to  the  agent  of  the  demanding  state. 
The  words  "it  shall  be  the  duty,"  however,  have  been  con- 
strued to  be  merely  "declaratory  of  a  moral  duty,"  and  the 
writ  of  mandamus  will  not  lie  to  compel  compliance  with  the 

'Virginia  vs.  Tennessee,  148  U.  S.,  503. 

118 


THE  GOVERNOR'S  SPECIAL  FUNCTIONS 

demand.^"  The  governor  upon  whom  the  demand  is  made 
may  therefore  refuse  to  issue  a  warrant  for  the  arrest  of 
the  fugitive  or  an  order  for  his  surrender  to  the  agent  of 
the  demanding  state,  for  whatever  reasons  seem  to  him  good 
and  sufficient.  On  the  other  hand,  the  legahty  of  the  gover- 
nor's action  in  issuing  the  warrant  may  be  the  subject  of 
judicial  inquiry  in  habeas  corpus  proceedings,  although  the 
governor  determines  in  the  first  instance  whether  the  de- 
mand is  in  compliance  with  the  law,  and  whether  the  per- 
son whose  return  is  sought  is  a  fugitive  from  justice.^^ 

As  already  pointed  out,  state  governors  may  be  called  upon 
in  time  of  war  to  act  as  agents  of  the  United  States  Gov- 
ernment in  recruiting  troops  and  for  other  purposes.  Inter- 
ference of  the  United  States  Government  by  force  in  the 
territory  of  a  state  is  authorized  by  the  Constitution  of  the 
United  States  for  the  purposes  of  guaranteeing  to  each  a 
republican  form  of  government,  and  protecting  each  against 
invasion  and  domestic  violence.  Action  designed  to  effect 
the  first  two  objects  may  be  taken  by  the  United  States  Gov- 
ernment on  its  own  initiative,  but  in  protecting  against  do- 
mestic violence,  it  waits  for  application  from  the  proper 
state  authority.  This  proper  state  authority  is  the  governor, 
provided  the  legislature  is  not  in  session  and  cannot  be  con- 
vened. The  policy  of  the  United  States  Government  has 
generally  been  not  to  intervene  in  cases  of  domestic  violence 
unless  the  need  is  clear,  nor  unless  the  application  is  made 
by  the  proper  authority.  On  the  other  hand,  if  the  interfer- 
ence is  for  the  purpose  of  enforcing  the  laws  of  the  United 
States,  as  in  the  case  of  the  Chicago  railroad  strike  in  1894, 
the  protest  of  the  governor  against  such  interference  is  un- 
availing. 

^^  Kentucky  vs.  Dennison,  24  How.,  66. 

^^ Ex  parte  Owen,  136  Pac,  197  (Okla.,  1913)  ;  on  the  governor's 
power  of  extradition,  see  also  Ex  parte  Thaw,  214  Fed.,  423;  Ex  parte 
Pettibone  and  Ex  parte  Moyer,   12  Idaho,  246,  250. 

119 


AMERICAN  STATE  ADMINISTRATION 

Pardoning  Power. — Just  as  the  governor  has  the  power  to 
veto  the  acts  of  the  legislature,  so  he  may  virtually  veto  or 
amend  the  decisions  of  courts  in  criminal  cases  through  the 
exercise  of  his  power  of  granting  pardons,  repi*ieves  and 
commutations.  Although  the  pardoning  power  was  a  part 
of  the  royal  prerogative  in  England,  it  has  not  been  gener- 
ally considered  in  this  country  as  belonging  inherently  in  the 
governor's  office,  and  therefore  an  express  grant  of  the 
power  is  necessary  to  its  exercise.  It  is  evidently  needful 
that  the  power  of  pardoning  or  of  equalizing  sentences  should 
exist  in  some  authority,  for  in  every  system  of  the  adminis- 
tration of  justice,  unavoidable  errors  and  miscarriages  of 
justice  may  occasionally  occur,  as,  for  example,  evidence  dis- 
covered subsequent  to  a  trial  may  establish  the  innocence  of 
a  convicted  man.  The  exercise  of  the  pardoning  power  may 
also  become  desirable  in  order  to  soften  the  severity  and 
rigidity  of  the  criminal  law.  This  was  the  condition  of  the 
English  criminal  law  at  the  time  of  the  separation  of  the 
American  Colonies  from  that  country,  and  also  to  a  large 
extent  of  the  Colonies  themselves,  who  inherited  the  English 
common  law.  The  severity  of  the  criminal  law  both  in  Eng- 
land and  in  America  was  relieved  in  part  through  the  growth 
of  numerous  technicalities  of  legal  procedure  which  gave  the 
accused  every  opportunity  to  secure  his  acquittal  and  through 
the  refusal  of  juries  to  convict  except  in  clear  cases,  and  in 
part  through  the  exercise  of  the  pardoning  power  by  the 
king  or  the  governor.  In  relieving  the  severity  of  the  crimi- 
nal law,  the  governor  acts  as  a  sort  of  criminal  court  of 
equity,  although  his  judgments  and  decisions  are  not  yet 
based  on  such  generally  understood  rules  as  those  of  equity 
jurisdiction,  but  still  rest  largely  upon  his  individual  con- 
science or  caprice.  The  practice  of  different  governors  in 
granting  pardons,  therefore,  is  likely  to  vary  just  as  did  the 
measure  of  the  Chancellor's  foot.  Records  of  precedents  and 
settled  rules  for  the  guidance  of  the  executive  are  lacking. 

120 


THE  GOVERNOR'S  SPECIAL  FUNCTIONS 

The  old  severity  of  the  criminal  law  has  now  largely  disap- 
peared, but  the  technicalities  of  legal  procedure,  the  wide  lati- 
tude of  appeal,  and  the  possibilities  of  reopening  the  case, 
which  were  designed  in  part  to  remedy  the  effects  of  such 
severity,  still  remain.  The  necessity,  therefore,  for  the  ex- 
istence and  exercise  of  the  pardoning  power  is  not  now  so 
great  as  was   formerly  the  case. 

The  pardoning  power  is  one  of  the  few  powers,  if  not  the 
sole  one,  of  the  governor,  the  vigorous  exercise  of  which  has 
not  met  with  general  approval.  Complaints  have  frequently 
been  made  that  the  governor  has  set  rascals  free  to  roam  at 
large,  either  because  he  has  been  imposed  upon  by  designing 
friends  or  has  not  had  the  backbone  to  withstand  the  tears 
and  entreaties  of  wives  and  relatives  of  the  convicted  man. 
Abuses  of  this  sort  have  undoubtedly  occurred  not  infre- 
quently, and  have  given  rise  to  the  demand  that  the  power 
be  hedged  around  with  such  restrictions  as  will  prevent  the 
recurrence  of  such  abuses.  As  a  matter  of  fact,  the  power 
has  seldom  if  ever  been  granted  to  the  governor  absolutely 
without  restriction.  The  limitations  which  rest  upon  the  ex- 
ercise of  the  pardoning  power  by  the  governor  may,  in  gen- 
eral, be  classified  into  three  groups :  first,  those  as  to  the 
offenses  to  which  it  may  extend ;  secondly,  those  as  to  the 
time  when  it  may  be  exercised ;  and  thirdly,  those  as  to  the 
manner  of  its  exercise.  Cases  of  impeachment  are  nearly 
always  excepted  from  the  governor's  pardoning  power,  and 
treason  is  usually  also  excepted,  and  sometimes  murder. ^^ 
Where  cases  of  treason  or  murder  are  excepted,  it  is  usually 
provided  that  the  governor  may  grant  reprieves  in  such  cases 
until  the  next  session  of  the  legislature.  In  Connecticut,  the 
governor  is  given  by  the  constitution  the  power  of  granting 
reprieves  only,  which  may  extend  no  further  than  the  end 
of  the  next  session  of  the  general  assembly. 

"If  the  governor  himself  is  under  impeachment,  a  pardon  granted 
by  him  is  void.    People  ex  rel.     Robin  vs.  Hayes,  143  N.  Y.  S.,  325. 

121 


AMERICAN  STATE  ADMINISTRATION 

Under  the  Constitution  of  the  United  States,  the  president 
has  the  power  of  granting  reprieves  and  pardons  without 
Hmitation  as  to  time,  that  is,  at  any  time  after  the  offense 
has  been  committed,  whether  before  or  after  conviction.^' 
The  states,  however,  have  not  in  general  seen  fit  to  leave  the 
governor's  pardoning  power  thus  unrestricted.  The  gover- 
nor may  ordinarily  issue  a  pardon  after  conviction,  or  even 
after  the  sentence  has  been  served  and  the  prisoner  has  been 
released,  but  the  power  of  "previous  pardon,"  that  is,  before 
conviction,  is  granted  to  him  in  very  few  states.  Inasmuch 
as  a  person  accused  of  crime  is  presumed  to  be  innocent  until 
found  guilty,  there  is  something  apparently  illogical  in  par- 
doning him.  But  though  there  is  a  legal  presumption  of  in- 
nocence, there  is  often  a  popular  assumption  of  guilt.  The 
main  arguments  in  favor  of  the  existence  of  the  power  of 
previous  pardon  are  that  it  may  be  desirable  to  pardon  subor- 
dinate accomplices  in  order  to  obtain  evidence  against  the 
principal  offenders  and,  in  times  of  political  excitement,  to 
prevent  the  arrest  and  imprisonment  of  persons  against  whom 
there  may  be  prejudice  and  false  charges.^*  Evidence  of  the 
sort  mentioned,  however,  may  usually  be  obtained  through 
promise  of  immunity  from  prosecution  on  the  part  of  the 
prosecuting  official.  The  exercise  of  the  power  of  previous 
pardon  is  equivalent  to  the  entry  of  a  nolle  prosequi,  as  it 
is  called  in  the  Maryland  Constitution,  and  as  such  entry  may 
usually  be  made,  under  certain  restrictions,  by  the  attorney- 
general  or  the  local  prosecuting  attorney,  there  would  seem 
to  be  no  sufficient  reason  for  giving  the  governor  this  addi- 
tional power  of  interfering  in  the  proceedings  of  criminal 
courts.  The  existence  of  such  a  power  even  contains  the 
possibility  of  transferring  the  trial  of  many  criminal  cases 
from  the  courts  to  the  governor. 

"  Ex  parte  Garland,  4  Wall,  232- 

^*  Debates  and  Proceedings  of  the  Pennsylvania  Constitutional  Con- 
vention of  1873,  ii,  pp.  370  ff. 

122 


THE  GOVERNOR'S  SPECIAL  FUNCTIONS 

In  the  third  place,  restrictions  rest  upon  the  governor  in 
regard  to  the  manner  of  exercising  the  pardoning  power. 
Such  restrictions  are  designed  to  promote  publicity  and  regu- 
larity of  the  proceedings,  and  to  create  some  legal  control, 
legislative  or  otherwise,  over  executive  action.  In  order  to 
avoid  secret  or  ex  parte  proceedings  on  the  part  of  the  gov- 
ernor, it  is  provided  in  a  number  of  states  that  the  power  is 
to  be  exercised  subject  to  such  regulations  as  may  be  pro- 
vided by  law  relative  to  the  manner  of  applying  for  pardons, 
and  that  all  grants  of  pardons,  reprieves  or  commutations 
shall  be  periodically  reported,  with  essential  particulars,  to 
the  legislature.  In  Maryland  the  governor  is  required  to 
publish  in  the  newspapers  notice  of  each  application  for  a 
pardon  with  the  date  upon  which  his  decision  will  be  given, 
and  the  legislature  may  also  require  him  to  report  the  rea- 
sons for  his  decision.  In  Kentucky,  Texas,  and  other  states, 
he  is  also  required  to  file  or  report  a  statement  of  the  reasons 
for  his  decision  on  each  application.  In  Mississippi,  and 
other  states,  the  applicant  himself  is  required  to  publish  in  a 
newspaper  of  the  locality  where  the  crime  was  alleged  to 
have  been  committed  a  notice  of  his  application  with  the  rea- 
sons therefor  before  a  pardon  can  be  granted.  There  is  a 
well  grounded  feeling  that  the  people  of  the  community  in 
which  the  crime  was  alleged  to  have  been  committed  should 
be  notified  and  have  an  opportunity  to  be  heard  in  regard 
to  the  matter.  This  applies  in  particular  to  the  judge  who 
presided  at  the  trial  and  the  district  or  state's  attorney  who 
prosecuted  the  case.  This  would  assist  in  guarding  the  gov- 
ernor from  imposition  by  enabling  him  to  obtain  information 
on  both  sides  with  reference  to  the  facts  of  the  case. 

Another  and  more  important  restriction  upon  the  governor 
in  regard  to  the  manner  of  his  exercise  of  the  pardoning 
power  is  the  requirement  that  he  may  exercise  it  only  in 
conjunction  with  some  other  body.  Thus,  in  several 
of  the  New  England  states,  the  power  may  be  exercised  only 

123 


AMERICAN  STATE  ADMINISTRATION 

with  the  advice  and  consent  of  the  council  or  senate.  More 
usually,  however,  the  body  participating  with  the  governor 
is  a  board,  created  by  the  constitution  or  by  statute,  and 
composed  of  ex  officio  or  specially  appointed  members.  The 
participation  of  such  a  board  in  the  exercise  of  this  power 
was  advocated  by  Francis  Lieber,  who  held  that  it  was  "best 
to  establish  by  law  a  board  of  say  five  members,  one  or  two 
of  them  to  be  judges,  without  the  written  report  of  which 
board  to  the  governor,  no  pardon  should  be  permitted,  or 
whose  consent,  after  full  investigation  of  the  case,  should  be 
necessary  for  the  validity  of  the  governor's  pardon."  ^^  In 
states  where  such  boards  are  created  by  the  constitution,  as 
in  New  Jersey  and  Pennsylvania,  they  are  usually  composed 
of  ex  officio  members,  and  their  consent  is  necessary  to  the 
valid  exercise  of  the  pardoning  power.  When  such  boards 
are  created  by  statute,  however,  after  the  constitution  has 
vested  the  pardoning  power  in  the  governor,  as  in  Illinois, 
their  functions  consist  merely  in  hearing  applications  for  par- 
dons and  in  giving  advice  and  recommendations  to  the  gov- 
ernor, which  he  may  follow  or  not,  as  he  sees  fit.^^ 

It  is  doubtful  whether  the  time  and  attention  of  the  chief 
executive  officer  of  the  state  ought  to  be  taken  up  with  mat- 
ters of  individual  application,  such  as  pardons.  The  pos- 
session of  this  power  is  apt  to  subject  him  at  times  to  politi- 
cal pressure  and  personal  influences  which  it  may  be  almost 
impossible  for  him  to  resist,  and,  at  all  events,  it  is  usually 
impracticable  for  him,  immersed  in  more  important  duties, 
to  give  to  the  numerous  applications  for  executive  clemency 
the  amount  of  careful  consideration  which  they  deserve. 
Certainly  the  assistance  of  some  agency,  such  as  a  board  of 

"  Reflections  on  the  Changes  Which  May  Seem  Necessary  in  the 
Constitution  of  New  York   (1867),  p.  13. 

"An  advisory  pardon  board  has  recently  been  created  in  California, 
consisting  of  the  lieutenant-governor  (chairman),  the  attorney-general, 
and  the  wardens  of  the  two  state  prisons.  Session  Laws  of  California, 
1 91 5,   Ch.   260. 

124 


THE  GOVERNOR'S  SPECIAL  FUNCTIONS 

pardons,  to  sift  the  applications  and  make  recommendations, 
is  desirable.  The  existence  of  special  boards,  moreover, 
tends  to  bring  about  a  greater  regularity  of  procedure  and 
more  settled  rules  for  the  determination  of  the  question  as 
to  whether  a  pardon  shall  be  granted.  The  procedure  before 
the  board  of  pardons  of  Colorado  is  thus  described  by  a  for- 
mer governor  of  that  state:  "Where  a  prisoner  claims  in- 
nocence, his  case  is  considered  at  once;  but  where  a  man 
does  not  claim  innocence,  he  must  wait  one  year  before  he 
can  make  application.  There  is  an  application  blank  which 
makes  him  state  his  version  of  the  crime,  makes  him  state 
whether  he  has  committed  other  crimes,  whether  he  has  been 
in  other  prisons  or  reformatories.  There  are  probably  a 
hundred  questions  he  has  to  answer.  When  the  warden  gets 
that  back,  he  submits  it  to  the  secretary  of  the  board  of  par- 
dons, then  to  the  judge  who  tried  the  case,  then  to  different 
witnesses  who  testified  against  the  prisoner,  and  then  the  case 
is  presented  before  the  board  of  pardons.  The  second  Fri- 
day of  every  month  is  set  for  the  hearing  of  such  cases.  At 
that  time  the  prisoner  can  appear,  by  counsel,  if  he  desires, 
or  by  friend,  and  make  any  statement  he  wishes,  not  under 
oath,  however,  unless  he  so  desires.  After  the  board  of  par- 
dons hears  the  case,  pro  and  con,  they  deliberate  upon  the 
matter  and  report  to  the  governor.  Under  the  old  system 
a  prisoner  could  come  to  the  governor,  and  he  would  hear 
one  side,  but  heard  no  one  on  the  other  side ;  and  the  result 
was  that  many  undeserved  pardons  were  granted.  Under 
this  system,  where  both  sides  are  heard,  you  can  ascertain 
whether  a  man  should  be  freed  or  not."  "  Thus  the  par- 
ticipation of  boards  is  beginning  to  give  to  the  granting  of  par- 
dons something  of  that  definiteness  and  regularity  of  pro- 
cedure which  equity  jurisdiction  long  ago  acquired  through 
the  accumulation   of  precedents.     Pardoning  boards   give   a 

"  Ex-Governor    Shafroth,    in    Governors'    Conference    Proceedings, 
1912,  p.  3i. 

125 


AMERICAN  STATE  ADMINISTRATION 

quasi-judicial  character  to  the  process  of  sifting  applications, 
and  that  they  are  generally  better  qualified  than  the  governor 
to  act  upon  them  is  tacitly  admitted  in  the  usual  practice  of 
governors  in  following  the  recommendations  of  such  boards, 
even  though  legally  they  are  merely  advisory. 

The  power  of  pardon  is  sometimes  expressly  vested  to 
some  extent  in  the  legislature  as  well  as  in  the  governor. 
Thus,  the  legislature  may  pardon  for  treason  when  the  gov- 
ernor merely  has  the  right  to  reprieve  for  this  offense. 
There  is  a  difference  of  opinion,  however,  as  to  whether  the 
grant  of  the  power  of  pardon  to  the  governor  operates  to 
exclude  the  legislature  from  any  participation  in  it.  Such  is 
probably  the  effect  usually  with  respect  to  acts  of  individual 
application,  except  in  the  case  of  the  remission  of  fines  and 
forfeitures,  but  the  legislature  may  by  law  make  general  rules 
extending  pardon  to  a  number  or  class  of  persons  through 
amnesty,  or  commuting  the  sentences  of  prisoners  under  cer- 
tain conditions  through  the  enactment  of  laws  providing  for 
shortening  of  terms  for  good  behavior.  Such  "good  time," 
however,  which  is  tantamount  to  conditional  commutation  of' 
sentence,  may  be  forfeited  by  particular  prisoners  whose  be- 
havior, in  the  judgment  of  the  prison  authorities,  has  not 
been  good. 

When  the  governor  is  vested  with  the  general  power  of 
pardon,  he  may  exercise  it,  under  the  common  law,  so  as 
to  grant  either  absolute,  limited,  or  conditional  pardons.^* 
The  right  to  grant  conditional  pardons  is  also  sometimes  ex- 
pressly recognized  in  the  constitutions,^^  and  the  governor  is 
sometimes  also  authorized  to  transfer  prisoners  from  the 
penitentiary  to  the  reformatory.  The  diflficulties  encoun- 
tered by  governors  in  granting  conditional  pardons  consist 

"  Provided  the  conditions  are  not  illegal,  immoral  or  impossible  of 
performance.     See  Ex  parte  Wells,  i8  How.,  307. 

"Constitution  of  Ohio,  Art.  3,  Sect.  11;  Constitution  of  Oklahoma, 
Art.  6,  Sect.  10. 

126 


THE  GOVERNOR'S  SPECIAL  FUNCTIONS 

principally  in  determining  whether  the  person  to  whom  such 
a  pardon  has  been  granted  is  observing  the  conditions,  and  in 
getting  him  back  into  custody  if  he  is  not.  The  general  rule 
is  that  the  questions  as  to  the  identity  of  the  prisoner  and 
whether  he  has  broken  the  conditions  can  only  be  deter- 
mined by  judicial  action,  though  such  action  is  not  always 
had,  and  it  has  been  held  that,  under  a  parole  accepted  by  a 
convict,  the  governor  can  order  him  remanded  without  notice 
or  opportunity  to  be  heard. ^°  In  1899  Governor  Stanley  of 
Kansas  inaugurated  a  system  of  conditional  pardons  in  that 
state.  He  released  a  number  of  prisoners  on  the  condition 
that  they  should  seek  employment,  refrain  from  gambling 
and  the  use  of  intoxicating  liquor  and  report  monthly  to  the 
warden.  The  results,  he  claimed,  showed  at  least  a  partial 
success.^^  On  the  whole,  however,  the  exercise  of  this  power 
by  the  governors  has  not  met  with  much  success,  and,  in 
some  cases,  has  been  a  flat  failure.  Former  Governor 
Hoadly  of  Ohio  declared  that,  of  twenty  conditional  pardons 
granted  by  him,  the  conditions  were  observed  in  only  one 
case.^^ 

The  exercise  by  the  governor  of  the  power  of  conditional 
pardon  has  become  less  necessary  with  the  introduction  in  a 
number  of  states  of  the  indeterminate  sentence  and  the  parole 
system.  The  latter  system  is  similar  to  the  conditional  par- 
don of  the  governor,  but  differs  from  it  in  that  the  prisoner 
on  parole  is  considered  to  be  still  in  the  legal  custody  of  the 
prison  authorities  or  of  the  parole  board,  who  may  remand 
him  into  actual  custody  at  any  time,  and  also  in  that  prisoners 
convicted  of  certain  crimes  are  sometimes  excepted  from  the 
operation  of  the  parole  system.  The  advantage  of  the  parole 
system  over  the  method  of  conditional  pardon  by  the  gover- 

^ Ex  parte  Horine,  148  Pac,  825  (Okla.,  IQIS)- 

"^Proceedings  of  the  National  Conference  of  Charities  and  Correc- 
tion, 1900,  p.  408. 
"Ibid.,  1886,  pp.  77  ff. 

127 


AMERICAN  STATE  ADMINISTRATION 

nor  lies  in  the  fact  that,  as  actually  administered,  it  provides 
more  effective  means  of  determining  what  prisoners  should 
be  placed  on  parole,  and  more  effective  supervision  over  them 
while  on  parole.  In  view  of  this  fact  it  is  doubtful  whether 
the  governor  ought  to  exercise  his  power  of  conditional  par- 
don, and,  a  fortiori,  his  power  of  absolute  pardon,  except  in 
very  unusual  circumstances,  in  the  case  of  a  prisoner  to  whom 
the  parole  system  may  be  applied. 

The  effects  of  the  exercise  by  the  governor  of  his  power  of 
absolute  pardon  are  either  direct  or  indirect.  The  direct  ef- 
fects are  not  only  to  liberate  the  prisoner,  but  also  usually 
to  restore  to  him  most  of  those  political  and  civil  rights  of 
which  his  conviction  automatically  deprived  him.  Indirect 
and  more  remote  effects,  however,  may  also  sometimes  be 
sought  by  the  governor  through  the  exercise  of  this  power. 
A  governor  opposed  to  capital  punishment  as  a  general  propo- 
sition might  defeat  the  law  of  the  state  on  this  subject  by  par- 
doning absolutely  all  persons  convicted  of  capital  offenses. 
Governor  Dunne  of  Illinois  granted  a  reprieve  to  a  man  sen- 
tenced to  be  hanged  for  murder,  not  because  there  was  any 
doubt  as  to  his  guilt,  but  with  the  object  of  securing  from 
the  sheriff  in  charge  definite  assurance  that  the  execution 
would  be  carried  out  in  as  orderly,  decent  and  private  a 
manner  as  possible.  Some  governors  have  exercised  the  par- 
doning power  to  such  an  excessive  extent  as  to  amount  almost 
to  a  general  jail  delivery.  Thus  a  former  governor  of  South 
Carolina  pardoned  over  400  persons  in  two  years,  but  the 
record  is  probably  held  by  the  governor  of  Arkansas,  who,  in 
1913,  pardoned  360  convicts  in  one  day.  In  both  cases  the 
object  was  ostensibly  to  break  up  the  contract  or  lease  system 
of  working  prisoners.  However  desirable  such  a  result  might 
be,  it  hardly  seems  justifiable  for  the  governor  to  pervert  the 
pardoning  power  from  its  proper  use  in  order  to  accomplish 
such  ulterior  results. 

Miscellaneous  Functions. — Among  these  may  be  mentioned 

128 


THE  GOVERNOR'S  SPECIAL  FUNCTIONS 

the  calling  of  special  elections  and  serving  as  ex  oMcio  mem- 
ber of  various  boards  and  commissions.  Just  as  the  governor 
is  frequently  empowered  to  fill  vacancies  in  appointive  offices, 
so  in  the  case  of  elective  offices,  he  is  similarly  authorized  to 
issue  writs  of  election  appointing  a  day  to  hold  a  special  elec- 
tion to  fill  such  vacancy.  This  is  the  ordinary  procedure  in 
the  case  of  vacancies  occurring  in  the  state  legislature  and  in 
the  House  of  Representatives  at  Washington,  Under  the 
seventeenth  amendment  to  the  Constitution  of  the  United 
States,  the  governor  may  cause  vacancies  in  the  senate  to  be 
filled  by  special  election,  or  may  by  law  be  authorized  to  fill 
them  by  temporary  appointments.  In  the  case  of  vacancies 
occurring  in  some  state  elective  offices,  such  as  judges  of  state 
courts,  the  governor  may  cause  them  to  be  filled  either  by 
calling  special  elections  or  making  appointments,  according  to 
whether  the  unexpired  portion  of  the  term  is  more  or  less 
than  a  given  period  of  time.^^  The  governor's  power  of  call- 
ing special  elections  may  sometimes  extend  to  elections  other 
than  those  for  the  selection  of  public  officers.  Thus,  upon 
the  petition  of  the  voters  of  an  unorganized  county  in  a  state, 
the  governor  is  sometimes  authorized  to  call  a  special  election 
for  the  organization  of  such  county.^* 

As  already  pointed  out,  the  legislature  may  confer  upon  the 
governor  functions  in  addition  to  those  conferred  upon  him 
by  the  Constitution,  provided  they  are  not  inconsistent  with 
the  proper  performance  of  his  executive  duties. ^^     In  pur- 

"  See,  for  example,  Kurd's  Revised  Statutes  of  Illinois,  191 1,  Ch. 
46,  Sect.  131. 

"South  Dakota  Compiled  Statutes,  1913,  p.  196. 

**  Thus,  the  governor  is  sometimes  authorized  by  act  of  the  legisla- 
ture to  entertain  a  petition  for  the  creation  of  a  new  county,  and  lo 
determine,  or  to  appoint  a  commission  to  investigate  and  determine 
whether,  in  the  case  of  counties,  cities  or  villages  petitioning  for  or- 
ganization or  incorporation,  the  requirements  of  the  Constitution  and 
statutes  have  been  complied  with,  and  to  issue  his  proclamation  accord- 
ingly. State  ex  ret.  Marrero  vs.  Ehret,  65  So.,  871  ;  State  vs.  Ansel, 
78  S.  C,  331 ;  City  of  Jackson  vs.  Whiting,  84  Miss.,  163. 

129 


AMERICAN  STATE  ADMINISTRATION 

suance  of  this  power,  the  legislature  has  vested  numerous 
miscellaneous  functions  in  the  governor,  among  which  is  that 
of  serving  ex  officio  on  various  state  boards  and  commissions. 
In  the  New  York  Constitutional  Convention  of  1846,  the  prop- 
osition was  brought  forward  that  the  "governor  shall  not  be 
eligible,  during  his  term,  to  hold  any  other  trust  or  public 
office."  To  this  Samuel  J.  Tilden  objected  on  the  ground  that 
it  would  prevent  the  governor  from  serving  ex  officio  in  vari- 
ous capacities.^®  The  convention  rejected  the  proposition,  but 
a  similar  provision  has  found  its  way  into  a  number  of  state 
constitutions.^^  The  courts,  however,  in  construing  these 
provisions,  have  not  taken  the  view  of  Mr.  Tilden,  but  have 
held  that  an  act  of  the  legislature  authorizing  the  governor  to 
serve  as  an  ex  officio  member  of  a  state  board  does  not  in 
fact  operate  as  an  appointment  to  a  different  office,  but  merely 
prescribes  an  additional  duty  to  be  performed  by  him  as  gov- 
ernor.^^ 

The  tendency  towards  vesting  in  the  governor  various 
ex  officio  functions  has  been  accentuated  in  Nebraska  on  ac- 
count of  the  constitutional  provision  that  no  executive  state 
office  other  than  those  provided  for  in  the  Constitution  shall 
be  continued  or  created,  but  that  the  duties  devolving  upon 
officers  not  provided  for  by  the  Constitution  shall  be  per- 
formed by  the  officers  therein  created.^®  The  legislature  at- 
tempted to  create  a  railroad  commission,  but  the  act  was  held 
unconstitutional  by  the  supreme  court  of  the  state.  The 
court,  however,  intimated  that  the  legislature  might  constitu- 
tionally designate  existing  executive  state  officers  to  act  as 
railroad   commissioners.^"      Subsequently,   in    1887   ^"*^    1^99 

^^  Debates,  pp.  167-168. 

""  E.  g.,  Constitution  of  Illinois,  Art.  V,  Sect.  S;  Constitution  of  West 
Virginia,  Art.  VII,  Sect.  4. 

^Bridges  vs.  Shallcross,  6  W.  Va.,  562;  State  vs.  Potterfield,  47 
S.  C,  75 ;  Arnold  vs.  State,  71  Tex.,  239. 

**  Constitution  of  Nebraska,  Art.  V,  Sect.  26. 

'Vh  re  Railroad  Commissioners,  15  Neb.,  679  (50  N.  W.,  276),  1884. 

130 


THE  GOVERNOR'S  SPECIAL  FUNCTIONS 

respectively,  the  legislature  created  the  offices  of  state  labor 
commissioner  and  state  food  commissioner,  but  imposed  the 
duties  of  these  offices  upon  the  governor,  with  power  to  ap- 
point a  special  deputy  to  assist  him  in  discharging  them. 
These  acts  were  upheld  by  the  court  as  not  in  violation  of 
the  beforementioned  constitutional  provision.^^  The  result  of 
this  inhibition  of  the  Nebraska  Constitution  is  that  the  legis- 
lature of  that  state  is  practically  forced  into  the  adoption  of  a 
type  of  state  administrative  organization  containing  possibili- 
ties, at  least,  of  a  high  degree  of  centralization  and  concentra- 
tion. If  the  governor  is  a  member  of  almost  every  state  com- 
mission and  is  himself  the  official  head  of  many  such  bodies, 
even  though  the  actual  work  is  performed  in  his  name  by  a 
deputy,  he  is  in  a  much  more  advantageous  position  to  super- 
vise and  coordinate  the  activities  of  these  bodies  than  is  ordi- 
narily the  case  in  most  states.  In  order  that  he  might  main- 
tain an  effective  supervision  over  them,  however,  it  would  be 
necessary  that  they  be  reduced  in  number  through  the  process 
of  abolition  or  consolidation  of  related  services.^" 

The  Conference  of  Governors. — This  body,  sometimes  called 
the  House  of  Governors,  first  met  in  1908  upon  the  call  of 
President  Roosevelt  for  the  purpose  of  considering  the  ques- 
tion of  the  conservation  of  natural  resources.  Annual  con- 
ferences have  since  been  held,  attended  by  governors,  gover- 
nors-elect and  ex-governors,  for  the  consideration  of  various 
questions  of  common  interest  to  the  states.  The  conference 
was  originally  hailed  with  enthusiasm  as  a  body  which,  though 

^^  State  vs.  Eskew,  64  Neb.,  600;  State  vs.  Cornell,  60  Neb.,  276;  Mer- 
rill vs.  State,  65  Neb.,  509 ;  In  re  Appropriations  for  Deputy  State  Offi- 
cers, 25  Neb.,  662. 

^'  It  may  be  noted  in  this  connection  that  under  the  charter  of  the 
Illinois  Central  Railroad  (Illinois  Private  Laws,  1851,  p.  71)  the  gov- 
ernor of  Illinois  is  made  a  sort  of  state  railroad  commissioner  with 
reference  to  this  company  through  his  power  to  pass  upon  the  correct- 
ness of  the  accounts  of  the  railroad  in  order  to  determine  the  amount 
of  the  7  per  cent  gross  receipts  tax.  State  vs.  Illinois  Central  Railroad 
Company,  246  111.,  188. 

131 


AMERICAN  STATE  ADMINISTRATION 

entirely  extra-constitutional  and  extra-legal,  would  prove  to 
be  an  important  influence  in  increasing  the  efficiency  of  the 
state  governments,  bringing  about  greater  uniformity  of  state 
action,  and  acting  as  a  bar  against  the  encroachments  of  cen- 
tralization and  "New  Nationalism."  Unfortimately,  these 
high  hopes  have  not  been  fully  realized.  Uniformity  of  legis- 
lation was  one  of  the  original  objects  of  the  Conference.  In 
this  direction  it  has  effected  some  improvement  in  state  di- 
vorce laws,  but,  on  the  whole,  much  less  has  been  accom- 
plished by  it  in  promoting  uniformity  of  legislation  than  by 
the  American  Bar  Association  and  the  Commission  on  Uni- 
form State  Laws.  In  the  direction  of  defending  the  states 
against  the  encroachments  of  national  centralization,  the  Con- 
ference has  done  little  except  to  exert  some  influence  on  the 
Supreme  Court  of  the  United  States  in  the  Minnesota  Rate 
Case, 

The  comparative  failure  of  the  Governors'  Conference  ap- 
pears to  be  due  partly  to  the  short  terms  of  most  governors 
and  the  consequent  changing  of  membership  of  the  Confer- 
ence and  lack  of  sustained  interest  in  the  proceedings,  partly 
to  the  social  and  unbusiness-like  character  of  the  poorly  at- 
tended meetings,  but  more  particularly  to  the  lack  of  the 
proper  sort  of  a  permanent  and  efficient  central  organization. 
The  Conference  has  now  cut  loose  from  the  guidance  of  the 
national  authority  and  has  the  nucleus  of  a  central  organiza- 
tion in  its  continuing  secretary,  but  his  functions  consist  prin- 
cipally in  arranging  for  the  annual  meetings  and  in  editing 
the  annual  volume  of  Proceedings.  The  central  organization 
should  have  sufficient  financial  support  so  that  it  might  be  of 
use  to  the  governors  all  the  year  round  in  serving  as  a  national 
clearing-house  of  information  regarding  important  matters 
of  legislation,  court  decisions,  and  administrative  action  in 
the  various  states.  In  spite  of  the  apparent  paucity  of  posi- 
tive results,  however,  the  intangible  value  of  the  Conference 
may  easily  be  underestimated.     It  will  prove  to  be  a  useful 

132 


THE  GOVERNOR'S  SPECIAL  FUNCTIONS 

adjunct  in  the  consideration  of  the  workings  of  the  state  gov- 
ernments, even  if  it  fulfills  no  other  function  than  serving  as 
a  means  for  the  interchange  of  vievv^s  and  ideas  and  of  in- 
formation regarding  the  results  of  state  experience. 

REFERENCES  AND  COLLATERAL  READING 

Fairlie,  J.  A.  "The  State  Governor,"  Michigan  Law  Review, 
X,  pp.  465  fif. 

FiNLEY,  J.  H.  and  Sanderson,  J.  F.  The  American  Executive  and 
Executive  Methods,  Chs.  VII,  XI,  XII. 

Hughes,  C.  E.  "Governors'  Conferences,  Their  Scope  and  Pur- 
poses," Proceedings  of  Governors'  Conference,  January,  1910, 
pp.   14  ff. 

Moore,  J.  B.    Extradition  and  Interstate  Rendition. 

Smithers,  W.  W.  "Nature  and  Limits  of  the  Pardoning  Power," 
Journal  of  Criminal  Law  and  Criminology,  i,  pp.  549-562. 

and  Thorn,  G.  D.     Executive  Clemency  in  Pennsylvania. 

Wilson,  Woodrow.  "The  Possibilities  of  the  Governors'  Confer- 
ence," Proceedings  of  Governors'  Conference,  December, 
1910,  pp.  42  ff, 

Wright,  Q.  "Military  Administration,"  in  Report  of  the  Effi- 
ciency and  Economy  Commission  of  Illinois,  pp.  867-906. 


CHAPTER  VI 
STATE   OFFICERS   AND    HEADS    OF    DEPARTMENTS 

State  officers  are  to  be  distinguished  from  local  officers  on 
the  one  hand,  and  from  state  employees  on  the  other.  State 
officers  are  usually  defined  as  those  whose  functions  are  coex- 
tensive with  the  state,  or  to  whom  is  delegated  the  exercise 
of  a  portion  of  the  (so-called)  sovereign  power  of  the  state, 
while  the  functions  of  local  officers  are  ordinarily  confined  to 
the  territorial  limits  of  particular  political  subdivisions  of  the 
state.^  The  tenure  of  state  employees  rests  upon  contract 
while  that  of  state  officers  does  not.  In  the  language  of  the 
Constitution  of  Illinois,  "an  office  is  a  public  position  created 
by  the  constitution  or  law,  continuing  during  the  pleasure  of 
the  appointing  power,  or  for  a  fixed  time,  with  a  successor 
elected  or  appointed.  An  employment  is  an  agency,  for  a 
temporary  purpose,  which  ceases  when  that  purpose  is  accom- 
plished." 2 

Lieutenant-Governor. — Next  in  rank  to  the  governor  among 
state  officers  stands  the  lieutenant-governor,  an  officer  found 
in  about  thirty-five  states.  He  is  elected  at  the  same  time  as 
the  governor  and  the  same  qualifications  are  usually  pre- 
scribed for  him.  He  may  be  classed  as  an  executive  officer 
with  normally  legislative  functions.  He  succeeds  to  the  office 
of  governor  in  case  of  the  latter's  death,  resignation,  impeach- 
ment, disability,  and,  in  some  states,  during  the  governor's 
absence  from  the  state.     It  has  been  held,  however,  that  the 

'  36  Cyclopedia  of  Law  and  Procedure,  852 ;  People  vs.  Evans,  247 

111..  547. 
'  Art.  V,  Sect.  24., 

134 


OFFICERS  AND  HEADS  OF  DEPARTMENTS 

lieutenant-governor  does  not  succeed  in  case  of  the  governor's 
temporary  absence,  unless  such  absence  affects  injuriously  the 
public  interest.^  When  succeeding  to  the  governorship,  the 
lieutenant-governor  comes  into  possession  of  the  former  gov- 
ernor's rights,  duties,  powers,  and  emoluments.*  In  some 
states  it  is  provided  that  in  case  of  vacancy  in  the  office  of 
lieutenant-governor,  the  president  pro  tempore  of  the  senate 
shall  succeed  to  that  office.  In  case  of  a  vacancy  in  the  offices 
of  both  governor  and  lieutenant-governor,  the  succession  is 
usually  the  same  as  in  states  which  have  no  lieutenant-gover- 
nor, viz.,  the  president  of  the  senate  succeeds  and,  after  him, 
the  speaker  of  the  house.^ 

Except  in  case  of  succession  to  the  governorship,  the  role 
which  the  lieutenant-governor  plays  is  a  relatively  insignifi- 
cant one.  He  presides  over  the  senate,  but  ordinarily  has  no 
part  in  the  deliberations  of  that  body,  and  no  vote  except 
when  the  senate  is  equally  divided.  On  this  account,  the 
lieutenant-governor  is  sometimes  regarded  as  a  mere  fifth 
wheel  to  the  cart,  which  might  as  well  be  dispensed  with.  On 
the  other  hand,  it  has  been  proposed  that  the  office  be  rehabili- 
tated by  giving  it  some  real  power.  In  one  or  two  states  he 
is  given  the  power  to  vote  and  take  part  in  the  debate  in  the 
committee  of  the  whole,  and  this  plan  has  been  proposed  in 
others.^  It  has  also  been  proposed  that  the  office  of  secretary 
of  state  be  merged  with  that  of  lieutenant-governor,  thus  in- 
ducing abler  men  to  seek  it.''  If  by  some  such  means  the 
office  could  be  made  more  attractive,  there  would  seem  to  be 
a  decided  advantage  in  retaining  it  in  order  to  provide  a  suit- 

'  State  vs.  Graham,  26  La.  Ann.,  568  (1874). 

*  It  has  been  held  that  the  governor  has  no  power  to  revoke  a  pardon 
granted  during  his  absence  from  the  .tate  by  the  lieutenant-governor 
as  acting  governor.  Ex  parte  Crump,  135  Pac,  428. 

'  See  State  vs.  Sadler,  23  Nev.,  356. 

*  See  Proceedings  of  the  IIHnois  Constitutional  Convention  of  1847, 
Illinois  State  Register,  July  20,  1847,  i,  No.  18. 

''Debates  of  the  Louisiana  Constitutional  Convention  of  1843,  p.  280. 

135 


AAIERICAN  STATE  ADMINISTRATION 

able  successor  to  the  governorship  in  case  of  need.  The  presi- 
dent of  the  senate  or  speaker  of  the  house,  on  account  of  the 
fact  that  they  are  elected  by  the  voters  of  only  a  small  part 
of  the  state,  are  not  so  suitable  for  this  purpose  as  an  offi- 
cer such  as  the  lieutenant-governor,  who  is  elected  at  large 
and  is  supposed,  at  least,  to  represent  the  people  of  the  vv^hole 
state.* 

A  body  known  as  the  executive  or  governor's  council,  fre- 
quently found  in  the  English  colonies  and  under  the  first  state 
constitutions,  has  survived  in  a  few  states,  including  Massa- 
chusetts, Maine,  New  Hampshire  and  North  Carolina.  In 
the  last-named  state  it  is  an  ex  officio  body,  in  Maine  chosen 
by  the  legislature  and  in  the  other  states  elected  by  the  people. 
The  latter  method  makes  it  a  more  independent  body,  but  in 
no  state  does  it  retain  any  considerable  importance  or  influ- 
ence. 

After  the  lieutenant-governor  and  the  executive  council  we 
find  in  most  states  a  large  body  of  state  executive  or  adminis- 
trative officials  whose  titles,  duties  and  powers  differ  in  dif- 
ferent states.  Although  no  hard  and  fast  line  of  demarka- 
tion  can  be  drawn,  they  may,  in  general,  be  divided  into  two 
main  groups.  The  first  group  is  composed  of  the  older  offi- 
cers, usually  provided  for  by  the  constitution  and  known  as 
heads  of  executive  departments,  such  as  the  secretary  of  state, 
attorney-general,  treasurer,  auditor  or  comptroller,  and  super- 
intendent of  public  instruction.  The  members  of  the  second 
group  of  state  officers  are  usually  provided  for  by  statute, 
and  have  been  created  principally  in  order  to  deal  with  certain 
economic  and  social  conditions  which  have  arisen  in  compara- 
tively recent  years.  Frequently,  they  are  multiple  in  form. 
Among  them  may  be  mentioned  banking  and  insurance  com- 
missioners, factory  inspectors,  state  boards  of  health  and  in- 
dustrial and   corporation   commissions.     The  first  group   of 

*  Cf .  Debates  of  the  New  York  Constitutional  Convention  of  1846, 
p.  168. 

136 


OFFICERS  AND  HEADS  OF  DEPARTMENTS 

state  officers  are  usually  elective,  while  those  of  the  second 
group  are  ordinarily  appointive. 

The  state  constitutions  usually  provide  that  the  executive 
department  shall  consist  of  the  governor,  lieutenant-governor, 
secretary  of  state,  attorney-general,  state  treasurer  and  one  or 
two  other  officers.  Some  constitutions  include  additional  offi- 
cers. Thus,  that  of  Oklahoma  mentions  the  "state  examiner 
and  inspector,  chief  mine  inspector,  commissioner  of  labor, 
commissioner  of  charities  and  corrections,  commissioner  of 
insurance  and  other  officers  provided  by  law  and  this  consti- 
tution." ^  Where  the  constitution  specifies  that  the  executive 
department  shall  consist  of  certain  officers  without  adding  the 
words,  "and  such  other  officers  as  may  be  provided  by  law 
or  this  constitution,"  it  might  be  supposed  that  the  legisla- 
ture would  be  unable  to  create  any  additional  executive  offi- 
cers, no  matter  how  much  they  might  be  needed,  but  all  sub- 
sequent duties  would  have  to  be  placed  upon  the  existing  offi- 
cers ex  officio}^  Except  in  Nebraska  and  Arkansas,  however, 
where  there  are  special  constitutional  prohibitions  against  the 
creation  of  additional  officers,  the  courts  have  not  generally 
taken  this  view.^^  Thus,  it  has  been  held  that  the  constitu- 
tional provision  as  to  what  constitutes  the  state  executive  de- 
partment does  not  limit  the  executive  officers  of  the  state  to 
those  mentioned  in  such  provision.^^  The  purpose  of  such  a 
provision,  it  has  been  held,  is  to  provide  for  such  officers  as 
the  framers  of  the  constitution  deem  indispensable,  leaving  to 

•Art.  VI,  Sect.  I. 

^'This  view  was  taken  by  Mr.  Haines  in  the  Illinois  Constitutional 
Convention  of  1870.     See  Debates,  i,  p.  760. 

"  In  Arkansas,  the  constitution  merely  prohibits  the  legislature  from 
creating  any  permanent  state  office  not  provided  for  in  the  constitu- 
tion (Art.  XIX,  Sect.  9).  Consequently,  the  legislature  has  the  right 
to  determine  when  a  temporary  office  is  required,  and  the  act  of  1913 
(Ark.  Session  Laws,  1913,  p.  465,  Sect,  i),  creating  a  state  banking  de- 
partment, was  held  not  to  be  in  violation  of  this  section.  Greer  vs. 
Merchants  and  Mechanics  Bank,  169  S.  W.,  802. 

"  State  vs.  Womach,  4  Wash.,  19  (29  Pac,  939). 

^Z7 


AMERICAN  STATE  ADMINISTRATION 

the  legislature  the  creation  of  new  officers  when  they  become 
necessary.^^ 

Secretary  of  State. — The  state  executive  officer,  known  as 
the  secretary  of  state  or  the  secretary  of  the  commonwealth, 
is  found  in  all  the  states.  He  is  elected  by  popular  vote  in 
all  the  states  except  Pennsylvania,  New  Jersey,  Delaware,  and 
Maryland,  in  which  he  is  appointed  by  the  governor  with  the 
consent  of  the  senate.  The  prevalent  method  of  popular  elec- 
tion of  the  secretary  of  state  renders  him  practically  inde- 
pendent of  any  superior  administrative  control,  but  his  powers 
and  duties  are  largely  regulated  by  the  constitution  and  stat- 
utes. Such  regulation  sometimes  goes  into  rather  minute  de- 
tail, as  in  the  case  of  the  Idaho  statute  requiring  the  secretary 
of  state  to  keep  his  office  open  for  business  during  certain 
hours  of  the  day.^*  So  large  is  the  control  of  the  legislature 
over  the  secretary  of  state  that  it  has  even  been  held  that  the 
legislature  may  devolve  on  him  the  performance  of  services 
foreign  to  the  office  and  may  pay  him  a  salary  therefor  in 
addition  to  his  salary  as  secretary  of  state.^^ 

The  powers  and  duties  of  the  secretary  of  state  are  of  a 
heterogeneous  character.  In  Massachusetts  until  1863  and  in 
New  York  until  1867  he  acted  as  state  commissioner  of  chari- 
ties to  the  extent  that  he  received  from  the  local  overseers  or 
county  superintendents  of  the  poor  annual  reports  containing 
such  information  as  he  might  direct.  In  New  York,  Illinois 
and  Louisiana  he  acted  for  a  time  as  ex  officio  state  superin- 
tendent of  public  instruction,  and  in  Wisconsin  and  Oregon 
he  was  made  ex  officio  state  auditor.  He  is  still  frequently 
found  as  ex  officio  member  of  various  boards  and  commis- 
sions. Most  of  his  powers  and  duties  are  of  a  ministerial 
character.     Thus,  he  is  usually  keeper  of  the  public  records, 

"  Parks  vs.  Commissioners  of  Soldiers  and  Sailors  Home,  22  Colo., 
86  (43  Pac,  542). 

Idaho  Revised  Code,  Sect.  339;  Seawell  vs.  Gifford,  22  Ida.,  295. 
Melone  vs.  State,  51  Calif.,  549. 

138 


14 
IS 


OFFICERS  AND  HEADS  OF  DEPARTMENTS 

archives  and  the  state  seal  and  custodian  of  public  buildings, 
grounds,  and  supplies.  He  authenticates  public  acts,  and  is 
responsible  for  the  publication  and  distribution  of  the  acts  of 
the  legislature  and  other  public  documents.  Specifically,  he 
is  required  to  countersign  and  seal  all  commissions  of  appoint- 
ment to  public  office  issued  by  the  governor.^^  He  usually 
also  has  important  functions  in  connection  with  elections,  such 
as  receiving  petitions  from  primary  candidates,  issuing  certifi- 
cates of  nomination  and  election,  and  furnishing  ballots  and 
other  supplies  to  be  used  in  state  elections.  He  compiles 
the  election  returns  and  publishes  a  state  manual  or  "blue 
book." 

Other  miscellaneous  functions  which  the  secretary  of  state 
is  frequently  called  upon  to  perform  include  the  issuance  of 
certificates  of  incorporation  to  companies  organized  under 
state  law,  the  admission  of  foreign  corporations,  and  the  issu- 
ance of  Hcenses  to  owners  and  operators  of  motor  vehicles. 
For  the  performance  of  his  services  in  issuing  such  certificates 
and  licenses,  the  secretary  of  state  receives  fees,  the  amount 
of  which  is  fixed  by  law.  In  most  states  he  is  required  to 
pay  the  proceeds  of  such  fees  into  the  state  treasury,  either 
by  a  specific  constitutional  or  statutory  provision  to  that  ef- 
fect, or  by  a  provision  fixing  his  salary  in  full  for  all  his 
services.^^  Although  most  of  the  services  which  the  secre- 
tary of  state  is  called  upon  to  perform  are  of  a  ministerial 
character,  there  are  some  which  involve  the  exercise  of  a 
certain  amount  of  discretionary  power.  Thus,  in  Massachu- 
setts, he  may  accept  or  reject  in  his  discretion  petitions  for 
incorporation  of  charitable  associations.  In  Oklahoma,  under 
a  statute  of  1910,  he  may  hear  arguments  and  testimony  for 
or  against  the  sufficiency  of  an  initiative  petition  filed  with 
him,  and  his  action  in  overruling  a  motion  for  continuance  of 


"  State  vs.  Barber,  4  Wyo.,  409. 

"  State  vs.  Lewis,  6  Idaho,  51,  construing  Constitution  of  Idaho,  Art. 
4,  Sect.  19. 

139 


AMERICAN  STATE  ADMINISTRATION 

such  hearing  will  not  be  disturbed  on  review  by  the  state  su- 
preme court  unless  it  affirmatively  appears  that  he  abused  his 
discretion.^^  On  the  whole,  the  office  of  secretary  of  state 
appears  to  be  very  loosely  and  unsystematically  organized.  It 
appears  that  some  of  his  duties,  such  as  those  relating  to  cor- 
porations and  motor  vehicles  and  the  collection  of  fees,  should 
be  transferred  to  other  officers  or  departments  of  the  state 
government  to  which  they  ar»  more  germane.  If  this  were 
done,  the  office  might  be  abolished  entirely  and  the  remaining 
duties  transferred  to  some  other  officer,  such  as  the  attorney- 
general. 

Attorney-General. — At  the  head  of  the  legal  department  of 
the  state  government  stands  the  attorney-general,  an  officer 
now  found  in  all  the  states.  He,  together  with  the  local 
prosecuting  attorneys,  upon  whom  the  law  imposes  the  duty, 
under  certain  circumstances,  of  instituting  prosecutions  for 
the  violation  of  state  law,  may,  perhaps,  be  called  the  state 
department  of  justice.  It  is  much  more  loosely  knit  and  dis- 
integrated, however,  than  the  corresponding  department  of 
the  National  Government. 

In  more  than  forty  states  the  attorney-general  is  now  chosen 
at  large  by  popular  vote.  In  the  other  states  he  is  chosen 
either  by  the  governor  alone,  or  by  the  governor  with  the 
consent  of  the  senate  or  council,  or  by  joint  ballot  of  the 
two  branches  of  the  legislature.  There  is  no  prevailing  length 
of  tenure  for  the  attorney-general,  the  term  varying  from  one 
to  four  years,  but  the  tendency  is  towards  the  longer  period. 
In  several  instances  the  term  of  the  attorney-general  does  not 
coincide  with  that  of  the  governor. 

In  addition  to  removal  by  impeachment,  provision  is  made 
in  a  few  states  for  the  removal  of  the  attorney-general  by 
special  process.  Thus,  in  New  York  he  may  be  removed  by 
a  two-thirds  vote  of  the  senate,  upon  the  recommendation  of 
the  governor.     In  no  case  can  he  be  ousted  from  office  ex- 

^ In  re  Initiative  State  Question,  26  Okla.,  554  (no  Pac,  647). 

140 


OFFICERS  AND  HEADS  OF  DEPARTMENTS 

cept  for  cause  and  after  having  received  notice  of  the  charges 
against  him  and  an  opportunity  of  defense. 

The  attorney-general  receives  a  fixed  annual  salary  from 
the  state,  which  averages  about  $4,000,  and  is  tending  to  in- 
crease. In  a  number  of  states,  particularly  those  in  which  his 
salary  is  small,  he  is  allowed  various  fees  in  addition.  The 
generally  recognized  ill  effects  of  the  fee  system,  however, 
have  caused  a  decided  tendency  towards  the  adoption  of  the 
provision,  either  in  the  constitution  or  by  statute,  that  all 
fees  collected  by  the  attorney-general  shall  be  turned  by  him 
into  the  state  treasury.  Since  the  legislatures  have  not,  as  a 
rule,  undertaken  to  enumerate  all  his  powers  and  duties,  the 
attorney-general  still  derives  some  powers  from  the  common 
law ;  ^^  but  most  of  them  now  depend  upon  constitutional  or 
legislative  enactment.  These  powers  and  duties  may  be  classi- 
fied as  follows :  ^° 

I.  Forensic.  He  appears  in  the  Federal  or  state  courts 
in  all  cases  in  which  the  state  is  a  party  or  interested,  for  the 
prosecution  of  offenders  against  state  law  and  to  defend  ac- 
tions brought  against  state  officials  in  their  official  capacity.^^ 
Under  certain  limitations,  he  may  enter  a  nolle  prosequi  for 
lack  of  evidence  or  other  cause,  and  thereby  discontinue  the 
proceedings.  It  is  particularly  his  duty  to  bring  actions  for 
the  enforcement  of  state  law  in  those  cases  where  the  inter- 
ests of  the  public  in  general  are  injuriously  affected,  but 
where  no  one  individual  is  sufficiently  interested  to  have 
standing  in  court.  In  the  exercise  of  his  discretionary  power, 
he  may  fail  to  bring  such  action,  or,  if  brought,  he  may  fail 
to  prosecute  it  vigorously  or,  at  certain  stages  of  the  proceed- 


"  State  vs.  Ehrlick,  65  W.  Va.,  700.     In  Fergus  vs.  Russel,  270  111., 
304,  it  was  held  that  the  common  law  powers  which  the  attorney-gen- 
eral possesses   under  the  constitution   are  inherent  in  the  office,  and 
cannot  be  taken  away  by  the  legislature. 
'^Report  of  Attorney-General  of  Pennsylvania,  1913-4,  PP-  3  ff- 
^  Cf.  State  vs.  Village  Council  of  Osakis,  128  N.  W.,  295. 

141 


AMERICAN  STATE  ADMINISTRATION 

ings,  may  abandon  the  prosecution  altogether.^^  The  large 
discretionary  power  thus  placed  in  his  hands  is  thus  liable  to 
subject  him  to  great  pressure  either  to  deal  leniently  with 
powerful  lawbreakers,  or  to  curry  favor  by  bringing  unwar- 
ranted prosecutions  against  unpopular  defendants. 

2.  Advisory.  It  is  his  duty,  when  requested,  to  render 
opinions  to  the  governor,  heads  of  departments  and  state 
boards  upon  legal  questions  arising  in  connection  with  their 
official  duties.  Contrary  to  the  practice  in  the  Federal  Gov- 
ernment, the  state  attorney-general  is  also  required  to  give 
opinions  upon  such  questions  to  either  branch  of  the  legisla- 
ture, and,  in  some  states,  to  legislative  committees.  In  par- 
ticular, he  consults  with  and  advises  the  local  prosecuting  at- 
torneys in  matters  relating  to  their  official  duties.  The  opin- 
ions of  the  attorney-general  are,  of  course,  not  mandatory, 
and  it  has  been  usually  held  by  the  courts  that  a  state  officer 
who  acts  upon  what  proves  to  be  a  mistaken  opinion  of  the 
attorney-general  does  so  at  his  own  peril. 

3.  Quasi-judicial,  such  as  the  passing  upon  applications  for 
suggestions  to  the  courts  that  certain  extraordinary  writs  be 
issued,  as,  for  example,  that  a  writ  of  quo  warranto  be  is- 
sued to  test  the  title  of  a  person  holding  public  office.^*  The 
attorney-general  may  hold  hearings  upon  the  question  in 
which  both  sides  are  represented  and  his  decision  in  the  matter 
is  sometimes  final. 

4.  Miscellaneoits,  such  as  serving  upon  various  state  boards, 
among  the  most  usual  being  the  state  board  of  pardons. 

State  boards  and  commissions  have  not  infrequently  been 
authorized  to  employ  special  counsel  to  conduct  their  legal 
proceedings.  With  the  growth  of  such  boards  in  number  and 
variety  of  function,  the  legal  business  of  the  state  has  tended  to 
become  disintegrated,  and  conflicts  or  friction  frequently  arose 
between  the  attorney-general  and  the  special  counsel  of  state 

"^  People  vs.  Spring  Lake  Drainage  and  Levee  District,  253  111.,  479. 
"Report  of  Attorney-General  of  New  York,  1906,  p.  18  ff. 

142 


OFFICERS  AND  HEADS  OF  DEPARTMENTS 

boards  and  between  the  different  special  counsel.^*  Even 
where  no  actual  conflict  arose,  the  lack  of  cooperation  between 
the  various  ofificers  entrusted  with  the  state's  legal  business 
operated  to  defeat  the  ends  of  harmony  and  economy.^^  On 
the  other  hand,  the  frequent  failure  of  local  prosecuting  at- 
torneys to  cooperate  with  state  boards  by  prosecuting  viola- 
tions of  the  substantive  law  which  the  board  is  created  to 
enforce  has  a  tendency  to  cause  such  boards  to  rely  princi- 
pally upon  special  attorneys  to  prosecute  such  violations. 
Moreover,  in  the  case  of  boards  and  commissions  whose 
activities  involve  a  large  amount  of  litigation,  the  employment 
of  special  attorneys  for  the  purpose  is  almost  necessary.  Such 
special  attorneys,  however,  need  not  be  entirely  disconnected 
from  the  legal  department  of  the  state  government.  They 
should  be  appointed  by  the  attorney-general,  attached  to  his 
office  and  subject  to  his  supervision,  though  under  the  im- 
mediate direction  of  the  particular  boards  to  which  they  are 
assigned.  Within  recent  years,  some  states  have  provided  by 
constitutional  or  statutory  enactment  that  all  the  law  business 
of  the  state  shall  be  conducted  by  the  attorney-general  or  un- 
der his  direction.-^  It  results,  therefore,  that  as  new  activities 
are  undertaken  by  the  states  and  new  boards  and  commis- 
sions created,  the  work  and  importance  of  the  attorney-gen- 
eral's  department  increase  correspondingly. 

It  still  remains  true,  however,  that  the  legal  business  of  the 
state  is  largely  disintegrated.  This  arises  not  only  from  the 
existence  of  numerous  special  attorneys  for  state  boards,  but 

"  Cf .  Report  of  Attorney-General  of  New  York,  1907,  p.  8. 

^Report  of  Attorney-General  of  Massachusetts,  1897,  p.  xvi;  Report 
of  Attorney-General  of  Illinois,  1907-8,  p.  ix. 

^°  In  Fergus  vs.  Russel,  270  111.,  304,  it  was  held  that  "except  where 
the  constitution  or  a  constitutional  statute  may  provide  otherwise,  the 
attorney-general  is  the  sole  official  adviser  of  the  executive  officers  and 
of  all  boards,  commissions  and  departments  of  the  state  government," 
and,  consequently,  an  appropriation  to  the  state  insurance  superintend- 
ent for  the  legal  services  of  special  counsel  is  unconstitutional  and  void. 

143 


AMERICAN  STATE  ADMINISTRATION 

also  from  the  lack  of  central  control  over  the  local  officers, 
usually  called  district  attoilngys,  prosecuting  attorneys,  or 
state's  attorneys,  to  whom  is  largely  intrusted  the  conduct  of 
the  state's  legal  business  in  the  localities.  In  the  large  ma- 
jority of  states,  this  officer  is  elected  by  the  people  of  the 
county  or  other  local  district  into  which  the  state  may  be 
divided  for  this  purpose.  His  term  of  office  is  usually  either 
two  or  four  years.  In  no  case  can  he  be  ousted  from  office  un- 
til certain  formalities  of  a  judicial  or  quasi- judicial  character 
have  been  complied  with.  In  some  states  the  attorney-general 
may  institute  quo  warranto  proceedings  against  him  in  the  su- 
preme court  of  the  state.  Perhaps  the  most  summary  meth- 
ods of  removal  exist  in  New  York  and  Minnesota,  where  the 
governor  alone  may  remove  him  after  notice  of  the  charges 
against  him  and  opportunity  of  defense.  This  power  of  the 
governor  is  executive  and  not  judicial,  and  his  decision  is  not 
reviewable  by  the  courts. 

The  prosecuting  attorney  appears  for  the  state  and  county 
and  prosecutes  all  actions,  civil  and  criminal,  in  the  courts  of 
his  county,  in  which  the  state  or  county  is  a  party  or  inter- 
ested. He  also  gives  his  opinion  to  any  officer  of  the  county 
upon  legal  questions  relating  to  the  duties  of  his  office.  He 
attends  the  grand  jury  for  the  purpose  of  giving  them  legal 
advice,  examining  witnesses,  and  drawing  up  indictments.  His 
power  of  entering  a  nolle  prosequi  in  a  criminal  case  has,  in 
a  number  of  states,  been  considerably  curtailed,  and,  in  South 
Dakota,   entirely  abolished. 

Various  somewhat  half-hearted  attempts  are  made  to  bring 
the  prosecuting  attorneys  under  central  control.  It  is  fre- 
quently provided  that  they  shall  be  under  the  direction  of  the 
attorney-general,  who  may  exercise  supervision  over  them  as 
to  the  manner  of  discharging  their  duties,  and  it  is  made  their 
duty  to  assist  him  in  the  prosecution  of  important  cases  aris- 
ing in  their  localities.  There  is  usually,  however,  no  means 
provided  for  enforcing  this  power  of  direction,  and  friction 

144 


OFFICERS  AND  HEADS  OF  DEPARTMENTS 

and  differences  of  opinion  have  frequently  arisen  over  such  a 
question  as  to  whether  sufficient  evidence  exists  for  under- 
taking a  particular  prosecution.  Under  such  circumstances, 
even  though  the  attorney-general  might  require  the  prosecut- 
ing attorney  to  begin  the  prosecution  or,  when  directed  by  the 
governor,  take  charge  of  the  law  business  in  the  local  courts, 
he  would  still  be  handicapped  by  lack  of  cooperation  on  the 
part  of  the  local  attorneys.  A  partial  remedy  for  this  condi- 
tion of  affairs  has  been  fourd  in  some  states,  either  by  the 
removal  of  the  local  attorney,  as  in  New  York,  Minnesota, 
Nebraska,  Indiana  and  Iowa,  or  by  a  practical  supersession 
of  the  local  prosecuting  officers  by  officers  of  central  appoint- 
ment and  control,  as  in  Pennsylvania,  Oregon  and  Kansas.^^ 

Financial  Officers. — "The  oldest  state  finance  official  is  the 
state  treasurer,  who  is  found  in  every  state,  to  receive,  care 
for  and  disburse  public  funds.  For  a  time  this  was  the  only 
state  officer,  the  assessment  and  collection  of  state  taxes  being 
entrusted  to  local  officials.  The  office  of  state  comptroller  or 
auditor  was  early  established  in  some  states ;  and  is  now  pro- 
vided in  nearly  all.  Every  state  has  a  state  treasurer.  In 
most  cases  this  officer  is  elected  by  popular  vote,  even  in 
states  where  some  of  the  older  state  officers  are  appointed; 
but  in  Maine,  New  Hampshire,  New  Jersey  and  Maryland, 
the  treasurer  is  chosen  by  the  legislature.  Thus  in  every  state, 
the  treasurer  is  by  law  independent  of  the  governor;  and  in 
some  states  this  is  further  marked  by  his  election  at  a  different 
time  or  for  a  shorter  term  than  the  governor  (as  in  Pennsyl- 
vania, New  Jersey,   Maryland,  Indiana  and  Illinois)." 

"The  treasurer  is  by  law  the  receiver  and  custodian  of  state 
revenues,  and  the  disbursing  officer  for  appropriations  from 


"Oregon  Session  Laws,  1915,  Ch.  196;  Pennsylvania  act  of  May  2, 
1905  (Public  Laws,  351),  upheld  as  constitutional  in  Commonwealth 
vs.  McHale,  97  Pa.,  397  and  Commonwealth  vs.  Havrilla,  38  Pa.  Super. 
Ct.,  292;  Kansas  Session  Laws,  1901,  Ch.  232,  construed  in  State  vs. 
Jepson,  76  Kan.,  644. 

145 


AMERICAN  STATE  ADMINISTRATION 

state  funds.  He  is  placed  under  heavy  bond  to  secure  the 
state  in  case  of  loss.  He  is  usually  a  member  ex  oMcio  of 
various  financial  boards,  such  as  boards  of  equalization,  sink- 
ing funds  and  land  funds;  and  less  frequently  is  a  member 
of  other  ex  officio  boards.  In  some  states  other  miscellaneous 
duties  not  connected  with  finances  are  placed  on  the  treasurer. 
Reports  of  receipts  and  expenditures  are  made  by  the  state 
treasurer  to  the  legislature.  But  these  are  usually  brief  sum- 
maries, while  the  more  detailed  statements  are  presented  by 
the  auditor  or  comptroller.  The  treasurer's  office  in  most 
states  is  limited  to  formal  and  ministerial  functions,  controlled 
by  the  auditor  or  comptroller.^^  In  no  state  does  he  have 
any  duties  or  influence  on  the  appropriations  or  revenue  laws, 
such  as  forms  the  important  work  of  a  Finance  Minister  in 
other  countries.  Under  the  earlier  laws,  the  treasurer  was 
assumed  to  have  physical  possession  of  the  state  funds — and 
he  was  personally  responsible  for  them ;  so  that  if  he  deposited 
any  amounts  in  banks  he  did  so  at  his  own  risk.^^  With  the 
increase  in  the  scale  of  financial  transactions  and  the  accumu- 
lation of  large  balances  at  times,  the  states  have  either  pro- 
vided vaults  for  the  custody  of  state  funds,  or  have  authorized 
deposits  in  banks."  ^° 

"All  of  the  states  have  made  provision  for  auditing  the  re- 
ceipts and  payments  of  the  state  treasury;  and  in  all  the 
states  except  three  a  separate  state  officer  and  department  has 
been  established  for  this  purpose.  In  Wisconsin  and  Oregon 
the  secretary  of  state  acts  as  auditor ;  and  in  New  Hampshire 

'"  It  has  been  held,  however,  that  the  state  treasurer  has  such  dis- 
cretionary powers  as  authorize  him  to  call  in  question  the  constitution- 
ality of  an  appropriation  act  by  refusing  to  pay  warrants  drawn  on  him 
so  as  to  secure  judicial  interpretation  of  the  statute.  Commonwealth 
vs.  Mathues,  210  Pa.,  372. 

"Cf.   State  vs.  Bobleter,  83  Minn.,  479. 

'"The  state  treasurer  may  not  deposit  state  money  in  any  particular 
bank  for  even  an  indirect  pecuniary  inducement,  arising  by  reason  of 
his  being  a  stockholder  in  the  bank.     People  vs.  Glazier,  159  Mich.,  528. 

146 


OFFICERS  AND  HEADS  OF  DEPARTMENTS 

warrants  on  the  treasury  are  drawn  by  the  governor,  who 
annually  appoints  a  committee  of  two  or  more  members  of 
the  executive  council,  to  audit  the  accounts  of  the  state  treas- 
urer. In  the  other  states  the  officer  in  charge  of  the  auditing 
department  is  usually  called  the  auditor;  but  the  exact  title 
varies  to  some  extent.  Usually  where  the  title  of  comptroller 
is  used  the  powers  of  the  office  are  larger  than  where  the  title 
auditor  is  employed." 

"This  official  is  elected  by  popular  vote  in  all  of  the  states 
except  New  Jersey  and  Tennessee,  where  he  is  chosen  by  the 
legislature.  His  term  in  most  cases  corresponds  with  that  of 
the  state  treasurer ;  and  like  that  official  this  is  sometimes  for 
a  shorter  period  than  the  governor;  but  in  a  few  states  the 
auditor  has  a  longer  term  than  the  treasurer,  as  in  Illinois, 
Minnesota  and  Ohio  (four  years)  and  Pennsylvania  (three 
years).  These  factors  serve  to  emphasize  the  independence 
of  the  office  from  the  chief  executive ;  but  none  of  the  states 
have  placed  the  position  on  the  basis  of  judicial  tenure,  as 
are  the  auditing  officials  in  Great  Britain  and  most  of  the 
countries  of  continental  Europe.  The  primary  function  of  the 
auditing  department  is  to  act  as  a  check  on  the  state  treasurer; 
and  in  most  states  it  is  more  important  than  the  treasurer's 
office  in  the  administration  of  state  finances.  It  keeps  a  record 
of  all  moneys  paid  into  or  out  of  the  state  treasury,  examines 
and  adjusts  claims  and  issues  warrants  or  orders  on  the  state 
treasury,  which  are  the  only  authority  to  justify  disburse- 
ments. It  operates  as  a  check  on  all  the  other  branches  of 
the  state  government  to  keep  their  expenditures  within  the 
limits  of  appropriations.  The  auditor's  report  usually  pre- 
sents a  detailed  statement  of  receipts  and  disbursements.  In 
addition  to  these  duties,  other  functions  have  been  added  to 
the  office  in  different  states.  The  auditor  is  usually  a  member 
of  various  financial  boards.  In  a  number  of  states,  he  re- 
ceives and  compiles  estimates  for  appropriations.  In  some 
states,  he  has  important  duties  in  the  assessment  and  collection 

147 


AMERICAN  STATE  ADMINISTRATION 

of  taxes,  especially  in  regard  to  corporation  and  inheritance 
taxes.  In  New  York,  Ohio  and  some  other  states  he  has 
supervision  over  the  accounts  of  county  and  municipal  offi- 
cials. In  some  states,  the  auditor  acts  in  other  capacities  not 
directly  connected  with  the  state  finances.  Thus  in  Minne- 
sota, he  is  land  commissioner;  in  Illinois,  he  has  charge  of 
the  supervision  of  state  banks;  in  Montana  and  Rhode  Island, 
he  acts  as  insurance  commissioner ;  and  in  Indiana  as  banking 
and  insurance  commissioner." 

"The  powers  of  the  state  auditor  or  comptroller  enable  him 
to  exercise  some  control  over  the  accounts  of  other  state 
offices  and  institutions,  and  also  over  the  accounts  of  local 
officers  relating  to  state  funds.  But  until  recently  in  most 
states,  this  has  been  limited  to  accounts  dealing  with  the 
collection  of  state  revenues  and  the  disbursement  of  state 
appropriations ;  and  for  these  has  been  confined  to  cash 
accounts,  and  to  keeping  expenditures  within  the  amounts  ap- 
propriated. A  number  of  states  have  now  made  provisions 
for  introducing  more  satisfactory  accounting  methods,  both 
for  state  officers  and  institutions  and  for  local  officials.  In 
some  cases  this  has  been  done  by  increasing  the  authority 
of  the  state  auditor  or  comptroller;  but  in  some  cases  an- 
other officer  has  been  created  for  this  purpose."  ^^ 

It  is  not  necessary  at  this  point  to  consider  in  detail  all 
of  the  heads  of  various  state  executive  departments.  Some 
of  them,  such  as  the  state  superintendent  of  public  instruc- 
tion, will  jye  considered  in  connection  with  that  phase  of  state 
administration  in  which  they  are  specially  concerned. 

An  important  question  which  bears  upon  the  general  posi- 
tion of  all  the  heads  of  state  executive  departments  is  that 
as  to  the  relation  in  which  they  stand  to  the  nominal  head  of 
the  administration,  the  governor.  At  the  beginning  of  the 
history  of  the  older  state  governments,  the  governor  in  some 

"  J.  A.  Fairlie,  "Revenue  and  Finance  Administration,"  in  Report  of 
the  EMciency  and  Economy  Committee  of  Illinois,  pp.  146-149. 

148 


OFFICERS  AND  HEADS  OF  DEPARTMENTS 

of  the  states  was  empowered  to  appoint  heads  of  executive 
departments.  This  method  of  selection  soon  gave  way  in 
practically  all  the  states  to  popular  election.  In  most  of 
the  states  the  older  constitutional  heads  of  departments  are 
now  generally  elected  by  the  people  at  the  same  time  that 
the  governor  is  elected.  Not  only  does  the  governor  have 
no  control  in  selecting  them,  but  he  has  little  or  no  power 
of  direction  over  them  after  they  have  been  selected.  It  is 
true  that  the  constitution  and  statutes  frequently  provide 
that  the  governor  may  request  information  in  writing  from 
them  regarding  their  duties  and  that  they  shall  make  reports 
to  him  periodically  or  upon  demand,  but  he  has  little  power 
of  following  this  up  with  any  measures  of  positive  control, 
for  he  has  practically  no  power  of  removal,  suspension,  or 
discipline  over  the  elective  heads  of  departments.  More- 
over, he  has  no  power  over  the  organization  of  the  depart- 
ments. He  cannot  determine  the  number  of  departments, 
nor  assign  the  various  services  to  be  performed  to  the  re- 
spective departments,  as  these  matters  are  regulated  by  con- 
stitutional or  statutory  provisions. 

The  term  "executive  department"  is  frequently  used  in  a 
loose  sense.  Properly,  it  should  be  used  to  designate  some 
fairly  large  and  well  defined  division  of  the  state  admin- 
istration, to  which  are  assigned  a  group  of  reasonably  homo- 
geneous functions.  Unfortunately,  the  state  administration 
is  not  divided  into  large  and  well  defined  departments,  but 
is  split  up  into  numerous  arbitrarily  constituted  sections. 
Can  there  be  said,  for  example,  to  be  a  state  financial  depart- 
ment when  duties  connected  with  the  finances  of  the  state 
are  divided  among  the  governor,  state  treasurer,  auditor,  at- 
torney-general, secretary  of  state,  insurance  commissioner, 
and  other  officers? 

It  is  evident,  therefore,  that  the  state  administration  is 
not  organized  for  efficiency  through  the  due  subordination 
of  the  various  ranks  of  an  official  hierarchy,  but  is  rather  or- 

149 


AMERICAN  STATE  ADMINISTRATION 

ganized  for  inefficiency  on  the  principle  of  checks  and  bal- 
ances. Although  the  principal  state  officers  are  formed,  in 
one  state,  into  a  sort  of  cabinet  to  assist  the  governor,^^  in 
no  state  do  they  occupy  that  close  and  intimate  relation  to 
the  governor  which  the  corresponding  officers  in  the  National 
Government  occupy  toward  the  president.  The  executive 
power  in  the  states  is  thus  only  nominally  a  unit.  In  re- 
ality, it  is  split  up  into  as  many  independent  parts  as  there 
are  heads  of  departments.^^  In  reality,  it  is  as  much  or- 
ganized on  the  collegial  principle  as  the  legislature,  with 
the  exception  that  there  are  usually  no  regular  stated  meet- 
ings of  the  executive  authorities  for  deliberation  and  the 
formulation  of  a  concerted  program,  but  each  acts,  in  general, 
separately  from  the  others.  It  is  somewhat  as  if  each  mem- 
ber of  the  legislature  were  assigned  a  certain  division  of 
the  field  of  legislation  in  regard  to  which  he  was  authorized 
to  take  action  without  consultation  with  the  other  members, 
subject  only  to  the  provisions  of  the  constitution  and  laws 
applicable  to  him.  So  each  state  executive  authority  wields 
separately  his  own  share  of  the  executive  power  without 
regard  to  the  activities  of  the  other  executive  authorities, 
subject  only  to  the  constitution  and  statutes,^* 

In  order  that  the  executive  departments  of  the  state  gov- 
ernments shall  be  even  tolerably  workable,  it  is  necessary 
that,  in  order  to  compensate  for  the  lack  of  administrative 
integration,  some  other  means  of  control  should  be  supplied. 
Such  means  are  largely  found  in  the  control  exercised  over 

"  Constitution  of  Florida,  Art.  IV,  Sect.  20. 

*^  Within  a  given  state  administrative  department,  how^ever,  the  prin- 
ciple of  centralization  is,  as  a  general  rule,  followed.  Wyman,  Admin- 
istrative Law,  p.  224.  To  this  general  rule,  however,  there  are  numer- 
ous exceptions,  owing  principally  to  administrative  insubordination,  due 
to  legislative  interference  in  administrative  matters.  See  Cornell  vs. 
Irvine,  yy  N.  W.,  114. 

•*  Cf.  Barthelemy,  Le  Role  du  Pouvoir  Executif  dans  les  Rcpubliques 
Modernes,  pp.  59-61. 

•    150 


OFFICERS  AND  HEADS  OF  DEPARTMENTS 

the  heads  of  executive  departments  by  the  legislature  and 
the  courts.^^  Within  the  limitations  of  the  constitution,  the 
legislature  may  by  law  impose  the  performance  of  many 
duties  upon  the  governor  or,  at  their  option,  upon  any 
other  executive  or  ministerial  officer.^^  Thus,  it  has  been 
held  that  the  secretary  of  state  is  bound  to  obey  the  direc- 
tions of  the  legislature  in  regard  to  the  public  records  in 
his  office,  he  being  the  mere  keeper  of  the  records,  subject 
to  their  orders.^^  In  1852,  the  legislature  of  Indiana  passed 
a  joint  resolution  directing  the  secretary  of  state  to  publish 
certain  laws  as  soon  as  convenient. ^^  Upon  his  failure  to  do 
so,  the  legislature  undertook  to  secure  his  removal  from 
office.  On  appeal  to  the  court  it  was  held  that  the  legisla- 
ture has  the  power  to  direct  the  secretary  of  state  with  regard 
to  the  proper  discharge  of  his  official  duties  and  is  the  judge 
of  the  proper  discharge  of  such  duties  when  determining 
whether  he  shall  be  removed  for  a  negligent  discharge  of 
them.^* 

The  duty  may  be  laid  upon  the  secretary  of  state  of  coun- 
tersigning and  sealing  the  commissions  of  appointments  made 
by  the  governor.  Under  these  circumstances  the  question 
arises  as  to  whether  the  secretary  of  state  may  refuse  to 
countersign  and  seal  a  commission  because,  in  his  judg- 
ment, the  governor  had  no  authority  to  make  the  appoint- 
ment. In  some  earlier  cases,  it  was  held  that  he  might  so 
refuse  and  could  not  be  compelled  by  mandamus  to  do  so.*" 

^  The  legislature  sometimes  attempts  to  provide  a  substitute  for  ef- 
fective administrative  supervision  in  securing  zeal  in  the  conduct  of  a 
department  by  providing  that  the  salaries  of  the  officers  in  the  depart- 
ment shall  not  exceed  the  amount  of  fees  collected  for  the  services 
performed.     See  N.  J.  Public  Laws,  1891,  p.  17. 

="  Slack  vs.  Jacob,  8  W.  Va.,  612  (1875). 

*^  Pinckney  vs.  Henegan,  2  Strob.,  250  (S.  C,  1848)  ;  see  also  People 
vs.  Santa  Clara  Lumber  Co.,  106  N.  Y.  Sup.,  624  (1907). 

•*Ind.  Acts,  1852,  p.  178. 

"  State  vs.  Bailey,  16  Ind.,  46. 

"People  vs.  Forquer,  i  111.,  104  (1825). 


AMERICAN  STATE  ADMINISTRATION 

In  Indiana  the  legislature  created  the  office  of  attorney-gen- 
eral and  the  governor  undertook  to  fill  it.  Upon  the  refusal 
of  the  secretary  of  state  to  countersign  and  seal  the  com- 
mission, the  matter  was  taken  to  the  court,  where  it  was 
held  that  the  appointment  of  the  attorney-general  vested  in 
the  legislature  and  not  in  the  governor.  It  was  further 
held  that  the  secretary  of  state  was  not  merely  secretary  to 
the  governor,  occupying  the  relation  to  him  of  an  agent  to 
his  principal,  but  that  the  office  of  secretary  of  state  was 
created  by  the  constitution,  and  he  could  not  be  compelled 
to  perform  an  act  which  he  was  not  bound  by  law  to  do.*'^ 
In  later  cases,  however,  the  courts  have  denied  the  con- 
tention that  the  secretary  of  state  can  exercise  any  discre- 
tion under  these  circumstances,  and  have  held  that  the  writ 
of  mandamus  will  lie  to  compel  him  to  perform  a  ministerial 
act,  and  that  he  is  amenable  to  injunction  when  attempting 
to  do  what  he  ought  not  to  do.'*^  Thus,  in  Louisiana,  the 
secretary  of  state  was  required  by  mandamus  to  seal  and 
countersign  a  commission  signed  by  the  governor  appointing 
the  relator  sheriff  of  the  parish  of  Orleans.  Otherwise,  said 
the  court,  the  secretary  of  state  would  have  a  "right  of  super- 
vision almost  equivalent  to  a  veto  power"  over  the  governor's 
acts.*^  Another  case  illustrating  this  point  arose  in  Florida 
in  1 891.  The  governor  made  an  appointment  to  fill  a  sup- 
posed vacancy  in  the  United  States  Senate,  and  directed  the 
secretary  of  state  to  countersign  and  seal  the  commission, 
in  order  to  complete  and  attest  the  appointment.  The  sec- 
retary of  state  refused  to  do  so.  The  governor  then  in- 
structed the  attorney-general  to  institute  proceedings  in  the 
supreme  court  to  procure  the  writ  of  mandamus  to  require 
the  secretary  of  state  to  countersign  and  seal  the  commission. 
The  attorney-general  also   refused  to   do  as  directed.     The 

"Collins  vs.  State,  8  Ind.,  344  (1856)  ;  36  Cyc,  856. 

"  State  ex  rel.  Mo.,  etc.,  Co.  vs.  Johnston,  234  Mo.,  338. 

"State  ex  rel.  Bienvenu  vs.  Wrotnowski,  17  La.  Ann.,  156  (1865). 

152 


OFFICERS  AND  HEADS  OF  DEPARTMENTS 

governor  himself  thereupon  petitioned  the  court  for  a  man- 
damus. It  was  held  by  the  court  that  the  countersigning 
and  sealing  of  the  commission  by  the  secretary  of  state  was 
a  clear  ministerial  duty,  involving  no  official  discretion  on 
his  part,  and  might  therefore  be  required  of  him  by  man- 
damus. The  secretary  of  state,  said  the  court,  has  no  right 
to  refuse  because  he  deems  the  governor's  action  illegal,  for 
the  signing  and  sealing  of  the  commission  does  not  com- 
mit the  secretary  of  state  to  the  legality  of  the  appoint- 
ment.** 

It  thus  appears  that  the  governor  may  issue  commands, 
but  the  heads  of  departments  need  not  obey  unless  compelled 
to  do  so  by  a  court  of  law.  The  relation,  therefore,  between 
the  governor  and  the  heads  of  departments  is  not  an  adminis- 
trative but  a  legal  relation.  This  is  in  direct  contrast  to  the 
relation  which  exists  between  the  President  of  the  United 
States  and  the  members  of  his  Cabinet,  and  tends  very  seri- 
ously to  disintegrate  the  state  administration.  It  is  an  un- 
edifying  example  of  the  bad  effects  of  the  application  of 
the  principle  of  checks  and  balances  in  state  administration. 
Nevertheless,  it  is  doubtless  better  that  the  governor  should 
be  able  to  exercise  some  control  over  the  acts  of  the  heads 
of  departments  through  writs  issued  by  the  courts  than  that 
he  should  not  be  able  to  exercise  any  control  over  them  at 
all.  It  is  to  be  noted,  however,  that  the  interposition  of  the 
courts,  as  thus  far  spoken  of,  is  confined  to  the  requirement 
that  heads  of  departments  shall  perform  acts  of  a  ministerial 
character  when  a  legal  interrelation  exists  between  the  acts 
of  the  governor  and  those  required  of  the  head  of  department. 

When  the  acts  of  the  head  of  department  admittedly  in- 
volve the  exercise  of  official  discretion,  the  writ  of  mandamus 
will  not,  as  a  general  rule,  lie  to  compel  the  performance 

"State  ex  rel.  Fleming  vs.  Crawford,  28  Fla.,  441  (1891)  ;  see  also 
State  vs.  Barber,  4  Wyo.,  409  (1893)  ;  and  Wyman,  Administrative  Law, 
pp.  220-225. 

153 


AMERICAN  STATE  ADMINISTRATION 

of  the  act.*^  In  some  instances,  however,  the  governor  has 
been  held  to  have  some  power  of  control  over  the  perform- 
ance by  the  attorney-general  of  his  discretionary  duties. 
Thus,  the  attorney-general  of  Oklahoma  was  required  by  law 
to  prosecute  and  defend  actions  and  proceedings  when  re- 
quested by  the  governor.  It  was  held  that  the  governor  had 
power  to  dismiss  an  action,  brought  by  the  attorney-general 
in  the  name  of  the  state,  and  that  he  might  himself  maintain 
an  action  in  the  name  of  the  state  to  prohibit  the  attorney- 
general  from  carrying  on  an  action  brought  by  that  officer.*^ 

The  Kansas  prohibitory  liquor  law  authorized  the  attorney- 
general,  when  notified  of  violations  of  the  law,  to  issue  sub- 
penas  and  examine  witnesses  touching  its  violation,  and  the 
legislature  of  that  state  had  also  by  statute  empowered  the 
governor  to  require  the  attorney-general  to  prosecute  or  de- 
fend for  the  state  any  cause  or  matter  in  which  the  state 
is  interested.*^  In  view  of  newspaper  statements  of  liquor 
law  violations,  the  governor  directed  the  attorney-general  to 
subpena  the  writer  of  the  newspaper  article,  hold  an  inqui- 
sition, take  his  testimony  relative  to  violations,  and  from 
such  testimony,  if  specific,  base  a  prosecution.  The  attorney- 
general  thereupon  informed  the  governor  that  the  matter  was 
within  his  official  discretion,  and  that  the  issuance  of  instruc- 
tions, directing  the  attorney-general  to  institute  prosecutions, 
was  not  within  the  scope  of  the  governor's  authority.  The 
matter  having  been  taken  into  court,  however,  it  was  held 
that  the  writ  of  mandamus  would  lie  to  compel  the  attorney- 
general  to  carry  out  the  directions  of  the  governor.** 

Although  the  doctrine  of  these  cases  represents  a  step  in 

**  State  ex  rel.  Rosbach  vs.  Pratt,  68  Wash.,  157,  in  which  it  was  held 
that  mandamus  will  not  lie  to  compel  the  attorney-general  to  perform 
the  discretionary  duty  of  commencing  legal  actions. 

**  State  ex  rel.  Haskell  vs.  Huston  et  al.,  21  Okla.,  782. 

*'  Kansas  General  Statutes,  1909,  Sects.  4366,  8906. 

**  State  ex  rel.  Stubbs  vs.  Dawson,  86  Kan.,  180  (1911).  There  was, 
however,  a  vigorous  dissenting  opinion. 


OFFICERS  AND  HEADS  OF  DEPARTMENTS 

advance  as  compared  with  the  former  attitude  of  the  courts, 
it  cannot  be  said  that  the  resuh  is  entirely  satisfactory.  It 
is  still  practically  impossible  for  the  governor  to  direct  the 
attorney-general  with  regard  to  all  the  technical  details  of 
a  prosecution,  and  it  is  only  natural  that  an  attorney-general, 
compelled  against  his  will  to  institute  a  prosecution,  will 
not  push  it  with  that  degree  of  care  and  energy  necessary 
for  success.  There  is  an  obvious  incongruity  involved  in  the 
attempt  to  give  the  governor  the  power  to  control  the  dis- 
cretionary acts  of  a  head  of  department  whom  he  has  not 
appointed  and  cannot  remove.  The  governor  cannot  exercise 
a  real  control  over  the  state  administrative  officers  through 
a  mere  legal  power  of  direction,  capable  of  being  enforced 
only  through  appeal  to  the  courts.  Such  control  by  the  gov- 
ernor cannot  be  fully  introduced  except  by  granting  to  him 
the  power  of  appointment,  combined  with  that  of  discipline, 
suspension  or  removal. 

REFERENCES  AND  COLLATERAL  READING 

Efficiency  and  Economy  Committee  of  Illinois.  Report,  pp.  943- 
970. 

FiNLEY,  J.  H.  and  Sanderson,  J.  F.  American  Executive  and 
Executive  Methods,  pp.  111-115. 

Garner,  J.  W.  "Executive  and  Executive  Reform  in  the  Ameri- 
can System,"  in  McLaughlin  and  Hart,  Cyclopedia  of  Ameri- 
can Government,  i,  pp.  682-684. 

GooDNOW,  F.  J.  Principles  of  the  Administrative  Law  of  the 
United  States,  pp.  154-155. 

Mathews,  J.  M.  "State  Attorney-General,"  in  McLaughlin  and 
Hart,  Cyclopedia  of  American  Government,  i,  pp.  93-94. 

Wyman,  B.  Principles  of  the  Administrative  Law  Governing  the 
Relations  of  Public  Officers,  Ch,  VIII. 


CHAPTER   VII 
STATE  BOARDS  AND  COMMISSIONS 

As  pointed  out  in  the  next  preceding  chapter,  state  execu- 
tive and  administrative  officials  may  be  roughly  divided  into 
two  main  classes :  first,  the  older  constitutional  officers  or 
heads  of  departments,  and,  secondly,  the  newer  statutory 
boards  and  commissions,  or  commissioners.  We  now  come 
to  the  consideration  of  this  second  class.  The  special  char- 
acteristics of  particular  kinds  of  state  boards  and  commis- 
sions are  described  in  connection  with  the  functional  activi- 
ties of  which  they  are  the  instruments.  In  this  chapter, 
therefore,  it  will  be  necessary  to  treat  only  of  some  larger 
considerations  which  concern  such  boards  and  commissions 
in  general. 

It  has  long  been  the  practice  of  state  legislatures  to  ap- 
point special  or  standing  committees,  composed  of  their  own 
members,  to  consider  matters  connected  with  particular  phases 
of  possible  legislation.  With  such  legislative  committees  or 
commissions  we  are  not  here  directly  concerned,  except  to 
note  that  from  them  have  sprung  certain  types  of  the  ex- 
ecutive boards  and  commissions,  which  have  become  such 
a  prominent  feature  of  state  administration  today.  "The 
shortness  of  legislative  sessions  in  most  states,  and  the  lack 
of  expert  knowledge  and  of  necessary  leisure  on  the  part 
of  the  legislators  themselves,  sometimes  led  them  to  establish 
a  committee  or  commission  composed  of  outsiders  possessing 
special  knowledge  of  the  subject,  and  able  to  give  their  whole 
attention  to  the  matter  in  hand."  ^ 

*  F.  H.  White,  "The  Growth  and  Future  of  State  Boards  and  Com- 
missions," Political  Science  Quarterly,  xviii,  p.  631, 

1=^6 


STATE  BOARDS  AND  COMMISSIONS 

.  At  the  beginning  of  the  history  of  the  states  and  for  a 
considerable  part  of  the  nineteenth  century,  the  administra- 
tive activities  of  the  states  were  generally  so  circumscribed 
as  to  require  few  agencies  outside  of  the  existing  state  of- 
ficers or  heads  of  departments.  ]\Iuch  of  what  has  since 
become  state  administrative  activity  was  then  performed,  if 
at  all,  by  local  agencies.  State  administrative  control  or  su- 
pervision over  many  matters  formerly  left  to  the  control  of 
local  authorities  has  been  brought  about,  first,  by  the  direct 
assumption  of  a  former  local  function  by  the  state ;  sec- 
ondly, by  establishing  central  administrative  supervision  over 
the  local  administrative  authorities  and  over  the  exercise 
by  them  of  administrative  functions.  The  influence  of  state- 
wide public  opinion  upon  the  activities  of  local  officers  may 
also  be  increased  through  the  publicity  arising  from  investi- 
gations of  local  administration  and  reports  made  by  state 
agencies.  In  addition,  many  new  functions  not  formerly 
performed  at  all  have  been  undertaken  by  the  states.  The 
assumption  by  the  state  of  each  successive  new  function  has, 
as  a  rule,  involved  the  creation  of  a  state  executive  or  ad- 
ministrative board,  commission,  commissioner  or  other  similar 
agency,  to  which  is  intrusted  the  direct  exercise  of  the  func- 
tion. The  creation  of  state  boards  and  commissions,  there- 
fore, has  gone  hand  in  hand  with  the  development  of  cen- 
tralization in  state  administration.  In  general,  such  bodies 
may  be  considered  as  administrative  agencies  created  for  the 
special  purpose  of  enforcing  or  supervising  the  enforcement  of 
a  particular  portion  of  the  substantive  law  of  the  state.^ 

The  creation  of  state  boards  and  commissions  began  in 
earnest  shortly  after  the  close  of  the  Civil  War,  and  was  largely 
due  to  the  development  of  new  conditions  in  the  states  at 
that  period.  The  increasing  complexity  of  modern  social 
and  industrial  conditions,  the  coming  into  existence  of  new 

'  On  the  function  of  state  boards  and  commissions  in  enforcing  state 
law,  see  below,  Ch.  XVI. 


AMERICAN  STATE  ADMINISTRATION 

and  unplumbed  phenomena,  and  the  awakening  sense  of  social 
solidarity,  involved  more  and  more  the  interference  of  the 
state  for  the  purpose  of  regulating  the  operations  of  busi- 
ness and  the  processes  of  life.  Such  matters  cannot  be  satis- 
factorily regulated  by  legislative  action,  and  administrative 
control  has  therefore  been  provided.^  The  creation  of  state 
administrative  agencies  in  the  form  of  boards  and  commis- 
sions secures  the  advantages  of  specialization  in  public  affairs 
and  the  application  of  technical  knowledge  and  skill  to  the 
regulation  of  complex  social  and  industrial  conditions.  The 
movement  for  the  creation  of  state  boards  and  commissions 
therefore  rests  fundamentally  upon  sound  principle.  It  must 
be  admitted,  however,  that,  in  practice,  the  movement  has 
gone  too  far.  It  has  sometimes  been  perverted  for  partisan 
purposes.  Undoubtedly,  in  many  instances,  new  boards  and 
commissions  have  been  created  primarily  for  the  purpose  of 
supplying  new  offices  to  be  filled  as  rewards  for  party  services, 
and  where  such  offices  carry  substantial  salaries  or  official 
fees,  they  are  eagerly  sought  after  by  decayed  politicians  and 
"lame  ducks."  * 

The  number  of  state  boards  and  commissions  is  continually 
on  the  increase,  and  scarcely  a  legislature  meets  without 
creating  several  new  bodies  of  this  kind.  During  the  first 
decade  of  the  present  century,  the  increase  in  the  number  of 
such  bodies  averaged  between  one  hundred  and  two  hundred 
annually.  They  are  found  in  greatest  number  in  the  more 
highly  developed  industrial  and  manufacturing  states.  In 
New  York  and  Massachusetts,  the  number  ranges  in  the 
neighborhood  of  one  hundred  and  fifty,  and  in  Illinois  there 
are  more  than  a  hundred.     The  large  majority  of  these  have 

*  The  constitutional  prohibition  of  special  acts  by  state  legislatures 
has  possibly  operated  as  one  cause  to  accelerate  the  increase  of  boards 
and  commissions,  for  the  rules,  regulations  and  special  orders  issued  by 
the  latter  may,  to  some  extent,  take  the  place  of  special  legislative  acts. 

*Cf.  message  of  Gov.  Baldwin  of  Connecticut,  191 1,  Conn.  Senate 
Journal,  1911,  p.  41. 


STATE  BOARDS  AND  COMMISSIONS 

been  established  during  the  last  two  or  three  decades.  The 
great  increase  in  the  expenditures  of  state  governments  has 
also  come  during  this  period,  and  is  undoubtedly  due,  in 
large  measure,  to  the  greater  scope  and  extent  of  state  ac- 
tivities, of  which  the  boards  and  commissions  are  the  instru- 
ments. Nevertheless,  the  activities  of  state  boards  and  com- 
missions have  involved  greater  expense  than  the  efficient 
performance  of  the  functions  assumed  would  warrant. 

The  range  of  subjects  which  have  been  brought  under  the 
administrative  control  or  supervision  of  state  boards  is  ex- 
tremely wide.  Among  the  more  important  matters  may  be 
mentioned  revenue  and  taxation,  charities  and  correctional 
institutions,  education,  public  health,  corporations,  such  as 
railroads,  public  utiHties,  banking  and  insurance,  agriculture 
and  the  conservation  of  natural  resources,  public  works,  labor, 
and  the  civil  service.  The  larger  number  of  boards  have 
to  do  with  economic,  developmental  and  regulative  func- 
tions. The  increasing  complexity  of  industrial  relations  has 
made  especially  numerous  within  recent  years  the  boards 
created  for  the  purpose  of  dealing  with  labor  matters,  such 
as  minimum  wage  boards,  industrial  commissions,  and  state 
accident  commissions  in  connection  with  employer's  liability 
and  workmen's  compensation  laws. 

It  is  difficult  to  make  a  thoroughly  satisfactory  classifica- 
tion of  state  boards  and  commissions.  A  classification,  in 
regard  to  which  it  can  only  be  said  that  it  is  less  unsatis- 
factory than  others,  is  as  follows:^  (a)  industrial,  such  as 
boards  of  agriculture  and  inspectors  of  mines  and  factories; 
(b)  scientific,  such  as  boards  of  health  and  bureaus  of  labor 
statistics ;  (c)  supervisory,  such  as  railroad  commissions  and 
commissioners  of  insurance  and  banking;  (d)  examining 
boards  for  various  professions  and  occupations,  as  dentistry, 
medicine,  pharmacy,  teaching,  and  the  civil  service;  (e)  edu- 
cational boards  and  public  library  commissions;   (f)    execu- 

•  F.  H.  White,  loc.  cit. 


AMERICAN  STATE  ADMINISTRATION 

tive,  such  as  highway  commissions  and  canal  boards,  engaged 
in   carrying   out   particular   enterprises;    and    (g)    corrective 
and  philanthropic,  such  as  state  boards  of  police  and  of  chari- 
ties and  correction,  superintendents  of  prisons  and  hospital 
commissions.     This  classification  is  made  on  the  basis  of  the 
specific  powers  exercised  by  the  commissions.     It  is  not  free 
from   overlapping   to    a   certain    extent.      According   to   the 
predominating  character  of  their  general  powers,  the  com- 
missions   might    be    divided    into    legislative,    administrative, 
and  judicial;  but  here  also  overlapping  would  occur.     WitK 
respect  to  the  extent  of  their  powers,  they  might  be  divided 
into  coercive  and  advisory.     Upon  the  basis  of  internal  or- 
ganization, without  regard  to  powers,  they  might  be  divided 
into  multiple  boards  or  commissions  and  single  commissioners. 
The  extent  of  the  powers  exercised  by  state  boards  and 
commissions  varies  widely.     In  some  cases   they  are  purely 
advisory,  merely  exercising  the  power  of  investigating  and 
recommending,  without  authority  to  carry  their  recommenda- 
tions  into   effect.     All  gradations   of   power  are   found   be- 
tween this  condition  and  the  other  extreme  in  which  the  state 
board  may,  as   in  the  case  of   some  public  utility  commis- 
sions,  issue   mandatory   orders   which    it   has   the  power  to 
enforce,  or,  as  in  the  case  of  some  state  boards  of  health, 
may  make  regulations  which  enter  into  the  details  of  local 
sanitary  conditions  in  all  parts  of  the  state.    Thus,  the  Louisi- 
ana State  Board  of  Health  is  authorized  to  make  a  sanitary 
code,   violations   of   which    shall  be   a   penal   offense.^     The 
New  Jersey  State  Department  of  Health   is  empowered  to 
enact  a   state   sanitary   code,   which   "shall   supersede   as   to 
those  matters  to  which  it  relates  all  local  ordinances,  rules 
and  regulations  and  shall  be  observed  throughout  the  state 
and  enforced  by  all  local  health  authorities."  ^ 


•  La.  Laws  of  1906,  no.  98 :  upheld  as  constitutional  in  State  vs.  Sny- 
der, 131  La.,  145- 
'  New  Jersey  Session  Laws,  191 5.  Ch.  288. 

160 


STATE  BOARDS  AND  COMMISSIONS 

The  issuance  of  such  rules  and  regulations  by  state  boards, 
or  the  making  of  rates  by  public  utility  and  railroad  com- 
missions constitutes  in  reality  the  exercise  of  a  subsidiary 
legislative  power.  State  boards  and  commissions  may  also 
sometimes  exercise  quasi-judicial  powers.  Thus,  in  conduct- 
ing hearings  and  inquiries,  the  board  or  quasi-judicial  tribunal 
may  be  empowered  to  administer  oaths,  subpena  and  ex- 
amine witnesses,  and  issue  subpenas  duces  tecum,  requiring 
the  production  of  books  and  papers.^  In  the  main,  how- 
ever, the  powers  of  state  boards  and  commissions  are  ad- 
ministrative in  character.  They  are  primarily  administrative 
bodies,  and  are  therefore  not  hampered  by  the  technical  rules 
of  judicial  procedure.  This  comparative  freedom  from  the 
procedural  limitations  which  hedge  about  the  courts  makes 
for  efficiency  and  promptness  in  administrative  action.  Con- 
clusiveness of  administrative  determinations  by  state  boards 
and  commissions,  however,  is  seldom  found.  In  order  to 
safeguard  private  rights  from  encroachment  through  arbi- 
trary administrative  action,  it  has  usually  been  deemed  neces- 
sary that  any  such  action  should  be  subject  to  judicial  re- 
view.^ The  constitutional  requirement  of  due  process  of  law 
and  the  principle  of  separation  of  powers  have  been  the 
grounds  of  many  court  decisions  holding  invalid  acts  of  the 
legislature  conferring  broad  powers  upon  administrative 
bodies.  In  order  to  avoid  the  danger  of  unconstitutionality, 
some  states  have  placed  in  their  constitutions  provisions  con- 
ferring powers  of  a  quasi-legislative  or  judicial  character 
upon  important  commissions.  Even  the  courts,  however, 
are  more  and  more  recognizing  the  fact  that  the  promotion 
of   the   social   welfare    often   requires   a   considerable   scope 

"In  State  vs.  Taylor,  145  N.  W.,  425,  however,  it  was  held  that  a 
North  Dakota  act  (Laws  of  1913,  Ch.  149),  establishing  a  state  bond- 
ing department  to  bond  certain  local  officials  was  held  invalid  as  an 
unwarranted  delegation  of  judicial  power  to  an  administrative  body. 

*  Chicago  etc..  Railway  Co.  vs.  Minnesota,  134  U.  S.,  418. 

161 


AMERICAN  STATE  ADMINISTRATION 

of  administrative  action.  Even  when  court  action  becomes 
necessary  the  scope  of  judicial  review  may  in  various  ways 
be  narrowed  and  that  of  administrative  action  correspond- 
ingly broadened.  Thus,  the  courts  usually  decline  to  sub- 
stitute their  judgment  for  that  of  the  state  board  in  the  de- 
termination of  questions  of  public  policy.^"  Moreover,  judi- 
cial review  may  have  to  do  merely  with  the  methods  whereby 
the  determination  of  the  board  was  reached  and  not  with 
the  subject  matter  of  the  determination."  Furthermore,  it 
may  be  provided  that  no  court  appeal  shall  be  allowed  from 
the  finding  of  the  board  upon  any  question  of  fact."  The 
scope  of  administrative  action  of  a  state  board  may  also 
be  virtually  widened  through  the  provision  making  it  unneces- 
sary that  such  board  should  bring  prosecutions  to  secure 
compliance  with  the  law  or  punish  violations  of  it,  but  em- 
powering the  board  to  enter  and  enforce  directly  an  order, 
which  becomes  the  final  determination  of  the  matter  unless 
the  person  against  whom  the  order  is  entered  appeals  from 
such  order  to  the  proper  court.  In  order  to  afford  a  greater 
degree  of  conclusiveness  to  administrative  determinations 
while  retaining  a  reasonable  safeguard  against  arbitrary  ad- 
ministrative action,  it  has  been  suggested  that  an  appeal  from 
the  decision  of  such  a  body  as  a  state  railroad  commission 
should  be  allowed  only  when  the  decision  appealed  from  is 
not  a  unanimous  one.^^ 

On  the  side  of  internal  organization,  state  boards  and  com- 
missions have  as  yet  been  granted  comparatively  slight  power. 
Although  the  boards,  or  their  executive  officers,  usually  have 
the  power  of  appointing  the  administrative  personnel  or  ex- 
pert staff  attached  to  the  board,  subject  in  some  states  to 

"  Public  Service  Gas  Co.  vs.  State  Board  of  Public  Utility  Commis- 
sioners, 84  N.  J.  L.,  463. 

"  California  Acts  of   1913,  Ch.  324. 

"  Stettler  vs.  O'Hara,  139  Pac,  743. 

"Message  of  Gov.  Baldwin  of  Connecticut,  191 1,  Conn.  Senate  Jour- 
nal, 1911,  p.  54. 

162 


STATE  BOARDS  AND  COMMISSIONS 

civil  service  regulations,  the  number  of  persons  in  the  staff, 
the  grade  or  rank  of  each,  and  the  amount  of  their  compensa- 
tion are  matters  which  are  usually  determined  by  the  legis- 
lature. Legislative  control  over  boards  and  commissions 
comes  about  both  through  the  general  power  of  the  legislature 
to  create  and  organize  such  bodies  and  also  through  its 
power  of  making  appropriations  for  the  running  of  the  state 
government  in  all  its  branches.  Legislative  appropriations 
for  the  maintenance  of  the  executive  departments,  boards 
and  commissions  frequently  go  into  great  detail,  specifying 
not  only  the  exact  salaries  of  each  member  of  the  staff,  but 
also  the  exact  sums  that  may  be  spent  for  each  particular 
article  that  may  be  purchased,  or  for  each  particular  class  of 
expenditure  permitted,  or  even  for  each  individual  item  of 
expense  that  may  be  incurred. 

It  is  possible,  however,  to  discern  evidences  of  a  tendency 
to  give  state  administrative  agencies  greater  control  over  their 
internal  organization.  The  legislature,  for  example,  some- 
times makes  a  lump  sum  appropriation  for  salaries  and  ex- 
penses, or,  if  the  appropriations  are  itemized,  authority  is 
given  the  commission  to  transfer  funds  from  one  to  an- 
other department  of  its  work  as  need  may  arise.  The  Cali- 
fornia industrial  accident  commission,  for  example,  may  ap- 
portion or  transfer  funds  among  its  several  departments  in 
accordance  with  their  respective  needs.  All  the  officers  and 
employees  of  this  commission  receive  such  compensation  as 
may  be  determined  by  the  commission,  hold  their  offices 
during  its  pleasure,  and  perform  such  duties  as  may  be  im- 
posed upon  them  by  law  or  the  commission.  The  legisla- 
ture, moreover,  not  infrequently  determines  the  maximum 
number  of  officers  or  employees  and  the  maximum  salaries 
to  be  paid  them,  the  exact  numbers  to  be  determined  by  the 
board  or  commissioner.  Thus,  the  New  Jersey  state  commis- 
sioner of  public  roads  is  empowered  to  employ  a  staff  of 
road  inspectors  not  exceeding  ten  in  number  at  not  exceeding 

163 


AMERICAN  STATE  ADMINISTRATION 

a  certain  salary.^*  An  example  which  still  better  illustrates 
the  tendency  to  transfer  the  control  of  administrative  or- 
ganization from  the  legislature  to  the  administrative  agen- 
cies themselves  is  found  in  the  flexibility  of  the  law  creating 
the  New  Jersey  bureau  of  shell  fisheries  and  the  large  degree 
of  discretion  allowed  the  board  over  its  internal  organiza- 
tion. Thus,  this  board  has  power  to  create  sub-departments 
or  divisions  to  take  charge  of  the  different  lines  of  work  in- 
trusted to  it.  It  may  appoint  heads  or  chiefs  of  such  divi- 
sions or  sub-departments  and  fix  their  salaries  as  well  as 
the  salaries  of  all  its  employees.  Moreover,  the  director 
of  shell  fisheries,  with  the  approval  of  the  board,  has  the 
important  power  of  abolishing  any  office  or  position  under 
the  board  which,  in  his  judgment,  it  may  be  unnecessary 
to  retain.^^  Administrative  control  over  such  matters  is  un- 
doubtedly an  advance  over  complete  legislative  control,  but, 
in  the  case  of  some  matters,  such  as  the  fixation  of  salaries 
and  hours  of  labor  of  the  employees  of  state  commissions, 
it  is  probable  that,  for  the  sake  of  uniformity,  this  function 
should  be  intrusted  to  a  distinct  administrative  body. 

The  determination  of  the  question  as  to  whether  the  func- 
tion to  be  performed  shall  be  intrusted  to  a  board  or  to  a 
single  commissioner  depends,  of  course,  upon  the  provisions 
of  the  constitution  or  statute  creating  the  administrative 
agency.  In  the  organization  of  the  large  majority  of  state 
administrative  agencies,  the  board  system  has  been  adopted. 
At  bottom,  the  prevalence  of  this  system  is  probably  due 
in  large  measure  to  a  traditional  fear  of  one-man  power. 
Various  other  reasons,  however,  have  undoubtedly  actuated 
legislative  bodies  in  adopting  this  plan.  As  many  adminis- 
trative agencies  have  been  created  for  the  purpose  of  sup- 
plying offices  to  be  filled  by  party  henchmen,  a  board  was 
naturally  preferable  from  this  point  of  view,  as  it  furnished 

"  New  Jersey  Session  Laws,  1915,  Ch.  294. 
"  Ibid.,  Ch.  387. 

164 


STATE  BOARDS  AND  COMMISSIONS 

a  larger  number  of  offices  to  be  filled.  Frequently,  it  is  pro- 
vided in  the  law  that  no  more  than  a  majority  of  the  board 
shall  be  composed  of  members  of  the  same  political  party. 
Ostensibly,  the  object  of  this  provision  is  to  give  an  ap- 
pearance of  non-partisanship  to  the  board,  but,  in  reality,  it 
tends  to  facilitate  the  workings  of  a  bi-partisan  combination 
for  the  distribution  of  the  offices  at  the  disposal  of  the  board. 
Sometimes  the  board  system  has  been  employed,  not  only  to 
give  representation  to  different  political  parties,  but  also  to 
give  representation  to  different  sections  of  the  state  or  to 
different  religious  sects.  The  entrance  of  such  considerations, 
however,  into  the  determination  of  the  personnel  of  the  board 
does  not  usually  make  for  administrative  efficiency  but  rather 
against  it.  On  the  other  hand,  there  are  sometimes  delib- 
erative functions  to  be  performed  and  questions  of  policy 
to  be  decided  by  the  administrative  agency  which  may  better 
be  performed  or  decided  by  a  board  than  by  a  single  com- 
missioner. 

On  the  whole,  if  a  choice  must  be  made  between  the  board 
and  the  single  commissioner,  the  latter  is,  in  most  cases,  de- 
cidedly to  be  preferred.  The  disadvantages  of  the  board  as 
compared  with  the  single  commissioner  may  be  summarized 
as  follows  :^^  (a)  boards  are  frequently  composed,  at  least 
in  part  of  ex  officio  members,  who  cannot  be  expected  to 
give  their  whole  attention  to  the  work  of  the  board;  (b) 
where  an  effort  is  made  to  give  representation  to  different 
sections  of  the  state,  it  is  difficult  to  get  all  the  members  to- 
gether and  meetings  of  the  board  are  apt  to  be  held  only 
at  infrequent  intervals;  (c)  even  when  meetings  are  held,  a 
board  shows  the  weakness  of  a  deliberative  body  in  being 
unable  to  reach  prompt  decisions;  (d)  unless  adequate  sala- 
ries are  paid  the  members  of  the  board,  they  cannot  usually 
be  expected  to  give  their  whole  time  to  the  work,  whereas, 

"  Cf.  L.  A.  Blue,  in  Annals  of  the  American  Academy  of  Political 
and  Social  Science,  xviii,  p.  434  ff. 

165 


AMERICAN  STATE  ADMINISTRATION 

if  adequate  salaries  are  paid,  this  item  of  expense  would  be 
much  greater  than  in  the  case  of  the  single-headed  depart- 
ment; and  (e)  responsibility  for  its  actions  in  the  case  of  a 
board  is  diffused  over  a  group  instead  of  being  concentrated 
on  one  man  as  in  the  case  of  the  single  commissioner. 

On  the  other  hand,  it  is  undoubtedly  true  that  for  some 
purposes,  such  as  the  formulation  of  rules  and  general  poli- 
cies, several  heads  are  usually  better  than  one.  Moreover,  it 
may  sometimes  happen  tTiat  a  board,  on  account  of  its  diffused 
responsibility,  may  be  more  energetic  in  carrying  out  an  ad- 
vanced and  enlightened,  but  unpopular,  policy  than  a  single 
commissioner  could  ordinarily  be  expected  to  be.  Further- 
more, through  the  device  of  gradual  renewal  of  its  member- 
ship, a  board  may  usually  be  expected  to  pursue  a  more  con- 
tinuous policy  than  a  single  commissioner,  unless  the  latter 
serves  for  a  very  long  term  or  is  regularly  reappointed  at 
the  end  of  his  term.  The  possibility  of  a  continuous  policy, 
however,  is  not  necessarily  an  advantage,  for  the  policy  pur- 
sued should  not  be  so  continuous  as  to  prevent  the  infiltra- 
tion of  new  ideas  and  the  adoption  of  new  and  advanced 
methods.  Moreover,  the  device  of  gradual  renewal  of  the 
membership  of  a  board  may  prevent  the  governor  or  the  ap- 
pointing authority  from  exercising  that  degree  of  control 
over  its  policy  which  should  belong  to  him,  and  which  he 
might  exercise  more  effectively  in  the  case  of  a  single  com- 
missioner. 

It  is  not  necessary,  however,  for  us  to  come  to  a  definite 
decision  as  to  the  respective  merits  of  the  two  plans.  In 
any  particular  case,  the  determination  of  this  question  would 
depend  largely  on  the  character  of  the  work  intrusted  to  the 
administrative  agency.  In  most  cases,  a  combination  of  these 
two  kinds  of  agencies  would  probably  be  more  effective  in 
securing  the  ends  in  view.  As  a  matter  of  fact,  it  often 
happens  that,  although  a  board  is  legally  and  ostensibly  in 
charge  of  a  given  function,  the  actual  discharge  of  the  func- 

i66 


STATE  BOARDS  AND  COMMISSIONS 

tion  is  largely  in  the  hands  of  a  single  officer,  who  serves 
as  the  secretary  or  executive  officer  of  the  board.  Where 
the  combination  plan  of  both  board  and  single  executive  of- 
ficer in  charge  of  a  given  function  is  legally  and  ostensibly 
adopted,  the  question  arises  as  to  what  relation  should  be 
set  up  between  the  two  agencies  and  where  the  line  of  di- 
vision should  be  drawn  between  their  respective  powers.  Al- 
though these  questions  can  frequently  be  answered  intelli- 
gently only  in  the  light  of  the  special  circumstances  of  a 
particular  case,  it  may  be  said  in  general  that  the  working 
and  action  of  the  executive  department  is  likely  to  be  less 
efficient  in  proportion  to  the  extent  to  which  the  executive 
officer  is  subject  to  the  control  of  the  board  in  the  perform- 
ance of  executive  duties.  The  executive  officer  should,  in 
general,  be  intrusted  with  entire  control  of  the  executive  or 
administrative  matters  connected  with  the  department,  sub- 
ject only  to  the  possibility  of  removal  from  office  at  stated 
intervals,  for  good  and  sufficient  cause,  by  more  than  a 
mere  majority  of  the  board.  He  should  also  be  appointed 
either  by  the  board  or  by  the  governor.  In  matters  requiring 
deliberation  and  the  interchange  of  opinions  and  views,  the 
participation,  if  not  control,  of  the  board  is  desirable.  The 
moral  support  and  aid  through  advice  and  encouragement 
which  an  able  and  progressive,  but  not  meddlesome  or  over- 
bearing, board  may  give  to  the  executive  officer  cannot  be 
wisely  dispensed  with.  But  the  actual  management  and  di- 
rection of  the  affairs  of  the  department  should  be  largely  in 
the  hands  of  the  executive  officer. 

The  administrative  organization  which  has  resulted  from 
the  practice  of  creating  numerous  state  boards  and  commis- 
sions shows  a  lack  of  conscious  development  and  of  systematic 
planning.  Endless  incongruities  and  absurdities  and  lack  of 
coordination  are  the  natural  result.  The  administration  of 
the  states'  business  has  been  divided  into  small  and  arbi- 
trarily limited  compartments,  each  under  a  separate  board, 

167 


AMERICAN  STATE  ADMINISTRATION 

exercising  its  powers  with  little  or  no  reference  to  the  activi- 
ties of  other  boards  charged  with  the  supervision  of  closely- 
related  matters.  The  slight  regard  paid  in  the  creation  of 
such  boards  to  their  proper  inter-relation  with  existing  agen- 
cies has  tended  to  produce  conflicts  of  authority  not  only  as 
between  the  state  commissions  themselves  but  also  as  between 
state  commissions  and  local  agencies,  departments  or  boards. 
Some  matters  may  escape  regulation  entirely  either  through 
conflicts  of  authority  arising  from  the  overlapping  jurisdic- 
tions of  different  administrative  agencies  or  because  such 
matters  fall  in  a  "twilight  zone"  between  the  vaguely  de- 
fined jurisdictions  of  such  agencies.  Thus,  the  inspection  of 
factories,  sweat-shops  and  bakeries  in  cities  may  fall  within 
the  province  of  both  the  state  and  municipal  departments 
of  labor  and  of  public  health.  In  such  cases,  careful  co- 
operation is  essential  to  adequate  regulation.  But  if  such 
matters  escape  regulation,  it  is  difficult  to  assess  and  fix  the 
blame.^'^ 

Moreover,  in  the  conduct  of  their  affairs,  such  boards  are 
frequently  practically  irresponsible  inasmuch  as  they  are  sub- 
ject to  but  slight  central  supervision  or  control  by  state  ex- 
ecutive authorities.  It  is  true  that,  while  some  state  boards 
are  elective  by  popular  vote,  most  of  them  are  appointive 
by  the  governor  with  the  advice  and  consent  of  the  senate. 
As  has  been  pointed  out,  however,  the  practice  of  providing 
for  gradual  renewal  of  the  membership  may  make  it  impos- 
sible for  a  governor  to  appoint  a  majority  of  the  board 
during  his  term  of  office,  especially  when,  as  not  infrequently 
happens,  his  own  term  is  shorter  than  those  of  the  board 
members.  Not  only  is  little  or  no  attempt  made  to  coordi- 
nate the  terms  of  board  members  with  that  of  the  governor, 
but  the  latter's  power  of  removal  of  such  officers  is  usually 
so  restricted  that  it  is  capable  of  exercise  only  in  extreme 
cases.     The  result  is  that,  as  has  been  frequently  remarked, 

"  Cf.  Report  of  New  York  Factory  Commission,  1912,  pp.  36-37;  78. 

168 


STATE  BOARDS  AND  COMMISSIONS 

they  practically  constitute  a  fourth  department  of  the  state 
government,  and  bring  about  a  serious  disintegration  in  the 
administration  of  the  state  business.  If  it  were  not  for  the 
common  control  exercised  over  the  many  practically  inde- 
pendent administrative  agencies  through  the  operations  of 
the  political  party,  they  could  scarcely  be  expected  to  work 
together  at  all. 

Some  of  the  results  of  the  irresponsibility  of  state  ad- 
ministrative agencies,  due  to  the  lack  of  effective  control  over 
their  activities  and  to  -the  pernicious  effect  of  party  politics, 
may  be  illustrated  by  the  office  of  the  Missouri  state  fish 
and  game  commissioner,  which  was  under  investigation  a  few 
years  ago.  It  was  found  by  the  investigating  committee  that 
the  commissioner  had  appointed  as  deputies  men  who  had 
no  qualifications  except  the  services  which  they  had  ren- 
dered to  the  political  party.  He  allowed  them  to  travel  about 
the  state  and  run  up  an  expense  account,  which  he  certified 
as  correct,  when  they  were  really  being  used  by  him  not  to 
perform  official  duties,  but  to  perform  partisan  services,  such 
as  getting  out  the  party  vote.  The  result  was  that  the  ef- 
ficiency of  this  branch  of  the  state  service  was  greatly  im- 
paired, and  the  real  work  of  the  department,  such  as  the 
discovery  and  prosecution  of  violations  of  the  fish  and  game 
law,  was  neglected.^* 

As  a  result  of  its  investigations,  the  Efficiency  and  Econ- 
omy Committee  of  Illinois  reached  the  following  conclusions 
in  regard  to  the  administrative  disintegration  produced  by 
the  board  system  in  that  state : 

"Under  the  existing  arrangements  inefficiency  and  waste 
necessarily  arise  from  the  lack  of  correlation  and  cooperation 
in  the  work  of  different  offices  and  institutions  which  are 
carrying  out  similar  or  closely  related  functions.     There  are 

^'  Report  of  Special  Joint  Committee  to  Investigate  the  State  Fish  and 
Game  Commissioner  to  46th  Gen.  Ass.  of  Mo.,  Appx.  to  Missouri  House 
and  Senate  Journal,  191 1,  No.  56. 

169 


AMERICAN  STATE  ADMINISTRATION 

separate  boards  for  each  of  the  state  penitentiaries  and  re- 
formatory and  for  each  of  the  state  normal  schools.  There 
are  half  a  dozen  boards  dealing  with  agricultural  interests; 
and  about  a  score  of  separate  labor  agencies,  including  four 
boards  dealing  with  mining  problems  and  eight  free  employ- 
ment offices,  each  substantially  independent  of  the  rest. 
State  finance  administration  is  distributed  between  a  number 
of  elective  and  appointive  officials  and  boards  without  con- 
centrated responsibility.  The  supervision  of  corporations  and 
of  banks,  insurance  companies  and  public  utilities  is  exercised 
by  a  series  of  distinct  departments.  State  control  of  public 
health  is  divided  between  various  boards  with  no  effective 
means  of  coordination.  Nor  is  there  any  official  authority  for 
harmonizng  the  work  of  the  numerous  educational  agencies."  ^^ 

With  regard  to  the  lack  of  effective  supervision  and  con- 
trol over  the  numerous  boards,  the  findings  of  the  Committee 
were  as  follows : 

"As  a  result  of  the  absence  of  any  systematic  organization 
of  related  services,  there  is  no  effective  supervision  and  con- 
trol over  the  various  state  offices,  boards  and  commissions. 
It  is  true  that  the  greater  number  of  these  are  under  the 
nominal  supervision  of  the  governor,  through  his  power  of 
appointment  and  removal.  But  the  very  number  of  separate 
offices  makes  impossible  the  exercise  of  any  adequate  control. 
To  a  very  large  extent  each  authority  is  left  to  determine 
its  own  action;  conflict  of  authority  between  two  or  more 
offices  is  often  possible;  and  if  harmony  and  cooperation  is 
secured  it  is  by  voluntary  compromise  rather  than  by  the 
advice  or  decision  of  a  superior  authority.  Under  the  pres- 
ent arrangements  too  many  independent  authorities  have 
power  to  make  expenditures  subject  to  no  effective  central- 
ized control  or  responsibility.  This  situation  necessarily  leads 
to  waste  and  extravagance."  ^° 

^'^  Report  of  EiHcicncy  and  Economy  Committee  of  Illinois,  p.  19. 
^  Ibid.,  p.  21.    These  remarks  apply  equally  to  many  other  states. 

170 


STATE  BOARDS  AND  COMMISSIONS 

In  conclusion,  the  possibilities  of  improving  the  condition 
of  affairs  described  above  may  be  briefly  considered.  In  one 
or  two  states,  such  as  Nebraska  and  Arkansas,  the  tendency 
toward  the  disintegration  of  the  administration  is  checked 
by  constitutional  restrictions  upon  the  creation  of  additional 
boards  and  commissions.  In  many  states,  efficiency  and  econ- 
omy commissions  are  investigating  conditions  and  making 
recommendations  for  a  reorganization  of  the  state  admin- 
istration along  lines  of  increased  simplicity  and  efficiency. 
^Meanwhile,  a  promising  tendency  has  developed  towards  a 
consolidation  of  some  boards  and  the  abolition  of  others. 
There  are  frequently  found  boards  which  are  intrusted  with 
the  exercise  of  functions  that  might  be  more  efficiently  and 
economically  exercised  by  some  other  better  organized  and 
established  agency  with  similar  functions.  Thus,  the  duties 
of  the  state  board  of  barber  examiners  might,  with  increased 
efficiency  and  less  expense,  be  performed  by  a  bureau  or  sub- 
department  under  the  state  board  of  health.  There  are  other 
boards  or  offices  that  may  once  have  served  a  useful  pur- 
pose, but  which  are  now  useless.  Thus,  in  Maryland,  the 
retention  of  the  office  of  state  wharfinger  seems  to  be  a  use- 
less expense  to  the  state,  as  it  no  longer  has  any  substantial 
duties  to  perform,  and  should  consequently  be  abolished. 
The  movement  toward  the  consolidation  and  abolition  of 
boards  may  be  said  to  have  practically  begun  in  New  York 
and  Massachusetts  in  1901  and  1902  respectively,  and  has 
since  grown  with  some  degree  of  steadiness,  though  it  has  not 
generally  kept  pace  with  the  rapid  increase  of  administrative 
agencies.  The  abolition  of  boards  has  not  had  the  effect  of 
narrowing  the  field  of  state  activity,  but  rather  of  creating 
a  more  centralized  control  over  such  activities,  for  the  work 
of  the  abolished  boards  has  usually  been  transferred  to  ex- 
isting agencies.  The  tendency  toward  the  consolidation  of 
existing  boards  into  a  single  central  body,  which  takes  over 
the  functions  previously  exercised  by  the  separate  boards,  has 

171 


A^IERICAN  STATE  ADMINISTRATION 

recently  been  especially  marked  in  connection  with  educational 
and  with  charitable  and  correctional  administration. 


REFERENCES  AND  COLLATERAL  READING 

Bates,  F.  G.  In  American  Political  Science  Review,  viii,  pp. 
431-436. 

Beard,  C.  A.  "Commissions  in  American  Government,"  in  Mc- 
Laughlin and  Hart,  Cyclopedia  of  American  Government,  i, 

PP-  350-354. 

Blue,  L.  A.  "Tendencies  in  State  Administration,"  Annals  of 
the  American  Academy  of  Political  and  Social  Science,  xviii, 
pp.  434-445- 

FiNLEY,  J.  H.  and  Sanderson,  J.  F.  American  Executive  and 
Executive  Methods,  Ch.  XIII. 

White,  F.  H.  "Growth  of  State  Boards  and  Commissions,"  Po- 
litical Science  Quarterly,  xviii,  p.  631  ff.,  reprinted  in  Reinsch, 
P.  S.,  Readings  on  American  State  Government,  pp.  222-239. 


CHAPTER  VIII 
THE  SELECTION  AND  REMOVAL  OF  STATE  OFFICERS 

Inasmuch  as,  in  a  democracy,  the  source  of  all  govern- 
mental power  and  authority  rests,  at  least  theoretically,  in 
the  people,  or  in  that  portion  of  the  people  who  have  ac- 
quired the  privilege  of  exercising  political  rights,  the  selection 
of  all  public  officers  rests,  either  directly  or  indirectly,  upon 
popular  authority.  The  people  may  either  exercise  this  power 
directly,  or  may  delegate  it  to  some  officer  or  organ  of  the 
government.  In  the  latter  case  the  officer  or  organ  exer- 
cising the  power  of  selection  is  in  turn  either  elected  by  popu- 
lar vote,  or  appointed  by  some  other  officer  or  organ  of  the 
government.  The  two  principal  methods  adopted  in  the 
states,  therefore,  for  the  selection  of  public  officers  are  those 
of  election  and  appointment. 

Whether  election  or  appointment  predominates  as  the 
method  of  forming  the  official  relation  is  a  question  which 
has  an  important  bearing  upon  the  character  of  the  adminis- 
tration. "The  method  of  appointment,"  says  Goodnow,  "aims 
at  administrative  harmony  and  efficiency.  The  method  of 
election  endeavors  to  insure  that  popular  control  over  the 
administration  which  is  one  of  the  fundamental  principles 
of  popular  government."  ^  The  ideal  of  the  elective  method 
is  self-government,  while  the  appointive  method  may  lead 
to  bureaucratic  government.  The  latter  result  is  especially 
apt  to  be  reached  where  a  class  of  professional  office-holders 
has  grown  up,  more  or  less  distinct  from  the  mass  of  the 
people.     From   the  standpoint  of  the  personnel  of  the  ad- 

^  Principles  of  the  Administrative  Law  of  the  United  States,  p.  232. 


AMERICAN  STATE  ADMINISTRATION 

ministration,  the  method  of  appointment  is  an  inte.rnal  or  co- 
optative  method  of  creating  membership  in  the  adminis- 
tration ;  while  the  elective  method  is  largely  external,  that 
is,  the  selection  is  made  by  persons  who  are,  for  the  most 
part,  not  themselves  members  of  the  administration.^  In 
the  case  of  elective  offices,  the  qualifications  required  are 
usually  capable  of  being  met  by  a  wider  range  of  persons 
than  in  the  case  of  appointive  offices,  and  the  idea  of  rota- 
tion in  office  is  more  freely  applied  to  elective  offices.  The 
elective  method,  therefore,  is  better  adapted  to  prevent  the 
rise  of  bureaucratic  government.  It  is  to  be  noted,  however, 
that  election  is  not  an  absolutely  external  method  of  cre- 
ating membership  in  the  administration,  because  members 
of  the  administration  have,  of  course,  the  privilege  of  voting 
in  the  election.  The  influence  of  the  administrative  personnel 
in  elections,  however,  is  greater  than  their  proportional  nu- 
merical strength  would  indicate.  This  arises  largely  through 
the  control  which  the  administration  may  exert  over  the 
nomination  of  candidates  for  elective  offices.  A  president 
or  a  governor,  for  example,  may  dictate  the  nomination  of 
his  successor  and,  if  the  party  is  successful  at  the  polls, 
such  dictation  of  the  nomination  is  practically  equivalent  to 
control  of  the  election.^     The  administration  may  also  fre- 

*  a  Wyman,  Administrative  Law,  p.  169. 

'  This  situation  may  be  illustrated  graphically  as  follows :  In  the  ac- 
companying figure,  let  A  =  the  personnel  of  the  administration  and  let 
B  =  all  other  voters.     On  account  of  the  relative  numerical  strength 

of  the  administrative  personnel  as  voters, 
the    center    of    gravity    of    the    combined 

O.  .  circles,  that  is,  the  point  tovi^ards  which  the 
1  •  •  j  control  of  the  selection  of  the  elective 
V  /  officer  will  gravitate,  will  not  be  at  the  cen- 
ter of  the  circle  B,  but  will  be  slightly 
shifted  in  the  direction  of  the  circle  A. 
Should,  however,  the  head  of  the  administration  be  able  to  dictate 
the  nomination  and  thus  control  the  election  of  the  officer,  the  center 
of  gravity  of  the  combined  circles  would  be  shifted  so  far  as  to  rest 
approximately  at  the  center  of  the  circle  A.    The  influence  of  the  mass 


SELECTION  AND  REMOVAL  OF  OFFICERS 

quently  select  the  incumbents  of  elective  offices  through  its 
power  to  fill  vacancies  which  may  occur  in  them. 

It  results  from  what  has  been  said  that  the  mere  fact  that 
to  the  mass  of  voters  is  given  the  formal  or  nominal  power 
of  filling  elective  offices  does  not  necessarily  indicate  that 
they  exercise  the  real  control  over  the  selection  of  such  of- 
ficers. Moreover,  even  should  the  selection  be  in  reality  made 
by  the  mass  of  voters,  the  result  would  not  be  satisfactory 
from  the  standpoint  of  efficiency  and  harmony  of  adminis- 
tration. The  responsibifity  for  the  selection  would  be  dif- 
fused among  the  mass  of  the  people,  and,  in  case  a  bad  se- 
lection should  be  made,  no  one  could  be  specifically  blamed 
for  the  choice.  Moreover,  the  responsibility  of  the  officer 
to  the  authority  which  created  his  membership  in  the  ad- 
ministration would  be  to  everybody  in  general,  but  to  no- 
body in  particular.  An  officer  subject  to  such  indefinite  and 
diffused  responsibility  is  seldom  able  to  be  called  effectively 
to  account  for  his  actions.  Election  makes  for  decentralized, 
unconcentrated,  disintegrated  administration,  with  each  of- 
ficer on  an  independent  footing,  subject  to  little  or  no  su- 
perior administrative  control. 

On  the  other  hand,  the  method  of  appointment  secures 
definite  responsibility  both  upon  the  selecting  authority  for 
the  choice  of  the  officer  and  upon  the  officer  for  his  official 
actions.  It  makes  for  centralized,  hierarchical,  unified  ad- 
ministration, with  each  officer  duly  subordinated  to  his  ad- 
ministrative superior.  This  is  true,  however,  only  where  the 
power  of  appointment  is  concentrated  in  the  hands  of  a 
single  officer.  In  this  case  the  power  of  appointment  may 
be  termed  absolute.  The  state  executive's  power  of  appoint- 
ment, however,  is  more  frequently  conditional,  that  is,  de- 
pendent on  the  consent  of  some  other  branch  or  organ  of 
the  government.     Thus,  most  of  the  governor's  appointments 

of  the  voters  in  the  selection  of  the  officer  would  thus  be  reduced  to  a 
negligible  quantity. 


AMERICAN  STATE  ADMINISTRATION 

are  subject  to  confirmation  by  the  senate,  or,  in  a  few  states, 
by  the  executive  council.  Except  in  the  somewhat  unusual 
case  of  appointive  officers  whose  terms  are  fixed  in  the 
constitution,  the  frequency  with  which  the  governor  may  ex- 
ercise the  power  of  appointment  to  a  particular  office  is 
subject  to  the  control  of  the  legislature  through  the  power 
of  the  latter  body  to  fix  the  length  of  the  term.  It  thus  ap- 
pears that  the  appointing  power  of  the  state  executive  is 
usually  subject  to  serious  restrictions,  but  even  if  untram- 
meled,  it  would  still  fall  short  of  furnishing  a  means  of 
complete  administrative  control  when  unaccompanied  by  the 
power   of   discipline,   suspension,   and   removal. 

The  methods  adopted  for  the  selection  of  administrative 
officers  in  the  states  disclose  no  well  matured  plan  or  logically 
thought-out  scheme.  The  judgment  of  the  American  peo- 
ple, so  far  as  indicated  in  the  various  laws  on  the  subject, 
appears  to  be  much  confused  and  uncertain.  The  method 
of  selection  adopted  in  particular  cases  appears  to  be  often 
the  result  of  accident  or  else  to  be  based  on  considerations 
other  than  those  of  administrative  efficiency.  The  selecting 
authority  may  be  either  the  governor  alone,  the  governor  and 
senate,  the  governor  and  executive  council,  the  legislature, 
the  courts,  or  the  people.  Some  rational  basis  for  differentia- 
tion in  method  doubtless  exists,  but  there  is  an  endless  varia- 
tion in  the  methods  adopted  for  the  selection  even  of  officers 
having  the  same  or  similar  duties  and  functions. 

At  the  beginning  of  the  history  of  the  states,  we  find  that 
appointment  was  more  frequently  used  than  election  as  the 
method  of  filling  offices  in  the  state  executive  department. 
Under  the  first  state  constitutions  of  New  York,  Massachu- 
setts, and  Illinois,  adopted  in  1777,  1780,  and  1818  respec- 
tively, the  governor  and  the  lieutenant-governor  were  the 
only  state  executive  officers  placed  on  the  elective  list.  Un- 
der the  Ohio  Constitution  of  1802,  the  governor  was  the 
only  such  officer  on  this  list,  and  in  most  of  the  other  early 

176 


SELECTION  AND  REMOVAL  OF  OFFICERS 

state  constitutions  the  use  of  the  elective  method  was  simi- 
larly restricted.  In  determining  the  method  of  appointing  the 
remaining  state  executive  officers,  however,  the  mistake  was 
made  of  placing  the  power  of  appointment  in  the  legisla- 
ture, or,  if  it  were  vested  in  the  governor,  he  was  under 
the  necessity  of  securing  the  confirmation  of  the  senate  to 
his  appointment.  Such  methods  of  appointment  led  to  log- 
rolling in  the  legislature,  or  a  division  of  responsibility  be- 
tween the  governor  and  the  senate,  or,  in  New  York  until 
1821,  between  the  governor  and  the  council  of  appointment.* 
The  dissatisfaction  with  the  appointive  method  of  select- 
ing administrative  officers  was  also  due  to  the  so-called  demo- 
cratic wave  which  swept  over  the  country  at  about  the  time 
of  President  Jackson's  administration,  and  brought  into  op- 
eration nearly  everywhere  the  elective  principle  in  selecting 
administrative  officers.  Many  such  officers  of  statutory  or- 
igin were  made  elective,  and,  in  the  various  state  constitutions 
adopted  about  the  middle  of  the  nineteenth  century,  the  same 
principle  was  applied  to  the  selection  of  the  constitutional 
state  officers  of  the  executive  department.^  Thus,  under  the 
New  York,  Illinois,  and  Ohio  constitutions  of  1846,  1848, 
and  185 1,  respectively,  most  of  the  principal  state  executive 
officers  were  made  elective.  The  selection  of  judicial  officers 
was  also  generally  brought  under  the  same  principle.  The 
extreme  to  which  the  movement  for  the  election  of  purely 
ministerial  officers  went  is  illustrated  by  the  motion  of  Mr. 
Vance  in  the  Illinois  Constitutional  Convention  of  1847  that 
"there  shall  be  elected  by  popular  vote  all  the  clerks  re- 
quired in  the  offices  of  the  treasurer,  auditor,  and  secretary 
of  state."  ®     This  motion   fortunately  was  not  adopted,  but 

*  Gitterman,  The  Council  of  Appointment  in  New  York,  Political 
Science  Quarterly,  vii,  p.  80. 

°  To  this  general  statement,  however,  New  Jersey  is  an  exception, 
for,  under  her  constitution  of  1844,  which  is  still  in  force,  the  governor 
is  the  only  elective  state  executive  officer. 

'  Proceedings  and  Debates  of  the  Illinois  Constitutional  Convention 

177 


AMERICAN  STATE  ADMINISTRATION 

the  clerk  of  the  supreme  court  was  made  an  elective  officer. 

The  idea  that  the  election  by  popular  vote  of  practically 
all  the  officers  of  the  government  is  a  fundamental  principle 
of  democracy  and  that  the  appointive  method  of  selecting 
officers  is  a  badge  and  token  of  autocracy  became  so  deep- 
seated  and  widespread  that  any  persons  who  opposed  the  idea 
were  deemed  almost  guilty  of  lese  majeste  or  petty  treason. 
Nevertheless,  even  at  the  height  of  the  so-called  democratic 
wave,  some  independent  thinkers,  who  were  comparatively  in- 
different to  the  results  of  their  utterances  upon  their  political 
fortunes,  ventured  to  raise  their  voices  in  opposition.  Thus, 
in  the  mid-century  Constitutional  Convention  of  Ohio,  Mr, 
Archbold  warned  the  members  that  "it  was  a  syren  voice  that 
invited  the  people  to  take  the  immediate  administration  of 
all  affairs  into  their  own  hands.  .  .  .  Some  very  great  occa- 
sion might  demand  the  employment  of  this  extensive  and 
ponderous  machinery  (election  by  the  people)  ;  but  to  em- 
ploy it  on  ordinary  occasions  would  be  like  using  a  spit  as 
big  as  a  ten-acre  field  to  roast  a  shoulder  of  mutton."  ^  A 
member  of  the  Pennsylvania  Constitutional  Convention  of 
1873,  in  opposing  the  proposition  that  the  superintendent  of 
public  instruction  be  chosen  by  popular  vote,  declared  that 
"the  people  are  not  at  all  times  best  qualified  to  judge  of  the 
fitness  of  a  man  for  such  a  position,"  and  added,  "there  is 
no  case  of  responsibility  at  all  attached  to  the  people  if  they 
exercise  their  power  of  election,  for  the  share  that  each  one 
bears  in  the  act  is  so  small  that  it  affects  him  little  or 
nothing."  ^ 

The  buoyant  expectations  of  the  Jeffersonian  and  Jack- 
sonian  democracy  have  undoubtedly  received  a  severe  disil- 

of  1847,  Illinois  State  Register  (Springfield),  August  14,  1847,  i,  No. 
29. 

''Debates  and  Proceedings  of  the  Ohio  Constitutional  Convention  of 
1S50,  P  93- 

^Debates  and  Proceedings  of  the  Pennsylvania  Constitutional  Con- 
vention of  1873,  \\,  pp.  362-363. 

178 


SELECTION  AND  REMOVAL  OF  OFFICERS 

lusionment.  We  have  begun  to  realize  that  the  introduction 
of  supposedly  democratic  devices,  such  as  wide  extension 
of  the  suffrage,  frequent  elections  and  numerous  elective 
officers,  has  given  us  merely  the  shell  and  husk  of  democracy 
and  not  the  substance.  In  particular,  it  is  seen  that  frequent 
elections  and  numerous  elective  officers  are  formulas  which, 
however  applicable  they  may  have  been  at  a  time  when  the 
nation  was  homogeneous  and  largely  rural  in  character,  have 
now  outlived  their  usefulness,  and  must  be  relegated  to  the 
scrap-pile.  These  devices  placed  such  a  heavy  burden  upon 
the  voter  that  he  abdicated  the  function  which  he  was  sup- 
posed to  perform  and  left  the  selection  of  a  large  proportion 
of  the  petty  and  unimportant  officers  to  the  party  managers 
and  political  experts.  The  officers  remained  nominally  elec- 
tive by  the  people  but  were  in  reality  appointed  by  the  po- 
litical experts  who  controlled  the  nomination  of  candidates. 
The  conditions  were  such  that  the  average  voter  could  not 
perform  the  functions  which  the  elective  system  required  of 
him.  Flis  position  was  somewhat  analogous  to  that  of  the 
"economic  man"  figured  by  the  economists  of  the  early  part 
of  the  last  century,  who  was  supposed  always  to  act  in 
accordance  with  his  own  economic  interest,  and  his  action 
would  redound  not  only  to  his  own  interest  but  also  to  the 
interests  of  society  as  a  whole.  But  in  actual  life  this  turned 
out  not  to  be  the  case.  Similarly,  it  was  apparently  sup- 
posed that  the  political  man  would  exercise  an  intelligent 
choice  in  voting  for  the  multitude  of  petty  officials  on  the 
ballot.  In  practice,  it  is  found  that  he  does  not  do  so,  but 
in  most  cases  contents  himself  with  voting  a  straight  party 
ticket  and  thereby  transfers  the  real  power  of  selection  to 
the  political  experts  who  drew  up  the  party  slate. 

The  realization  by  the  people  of  the  fact  that  they  do  not 
really  exercise  any  power  of  selection  of  many  nominally 
elective  officers  has  led  directly  to  the  movement  for  the 
short  ballot.     The  principle  of  the   short  ballot,  as   formu- 

179 


AMERICAN  STATE  ADMINISTRATION 

lated  by  the  National  Short  Ballot  Organization,  is  as  fol- 
lows: "First,  only  those  offices  should  be  elective  which  are 
important  enough  to  attract  and  deserve  public  interest ;  and, 
secondly,  very  few  offices  should  be  filled  by  election  at  one 
time,  so  as  to  permit  adequate  and  unconfused  public  exami- 
nation of  the  candidates."  ® 

If  it  be  asked,  what  officers  are  important  enough  to  arouse 
public  interest,  the  answer  is,  only  those  few  officers  at  the 
head  of  the  ticket  whose  functions  involve  the  determination 
of  policy.  Such  officers  are  usually  sufficiently  conspicuous 
and  their  relative  merits  are  before  the  public  eye  to  such 
an  extent  that  the  people  can  choose  intelligently  between 
them.  In  connection  with  the  management  of  their  offices  and 
the  performance  of  their  functions,  there  may  be  legitimate 
differences  of  opinion  as  to  the  proper  policies  to  be  pur- 
sued, which  can  be  appreciated  by  the  mass  of  the  electorate. 
With  respect,  however,  to  the  horde  of  minor  offices  and 
clerical  positions,  which  involve  the  performance  of  merely 
ministerial  duties,  there  can  be  no  legitimate  difference  of 
opinion  as  to  the  proper  method  of  attending  to  such  duties, 
capable  of  being  appreciated  by  the  mass  of  the  voters,  and 
it  is  absurd,  therefore,  to  submit  the  choice  of  such  petty 
officers  to  the  people  at  the  polls.  The  principle  involved 
may  be  summed  up  in  the  phrase :  When  you  want  repre- 
sentation, elect;  when  you  want  administration,  appoint. 

"The  folly  of  obliging  the  people  to  decide  at  the  polls 
upon  the  fitness  for  office  of  a  great  number  of  persons  lies 
at  the  bottom  of  almost  all  the  misgovernment  from  which 
we  suffer,  not  only  in  the  cities  but  in  the  states.  It  is  a 
darling  device  of  the  political  jobbers  and  a  most  successful 
one ;  for,  under  the  hollow  pretense  that  thus  the  people  have 
the  greater  power,  they  are  able  to  crush  public  spirit,  to 
disgust  decent  and  conscientious  citizens  with  politics,  to  ar- 
range  their   'slates,'   to   mix   the   rascals   judiciously  with   a 

"  Childs,  Short  Ballot  Principles,  Preface. 

1 80 


SELECTION  AND  REMOVAL  OF  OFFICERS 

few  honest  men  wherever  public  sentiment  imperatively  de- 
mands that  much,  and  to  force  their  stacked  cards  upon  the 
people."  i« 

The  second  part  of  the  short  ballot  principle,  as  stated 
above,  might  conceivably  be  carried  out  by  retaining  the  ex- 
isting number  of  elective  officers,  but  increasing  the  length 
of  their  terms  or  increasing  the  frequency  of  elections.  While 
an  increase  of  the  length  of  terms  would,  in  many  respects, 
prove  a  desirable  feature  in  connection  with  the  short  bal- 
lot, an  increase  in  the  frequency  of  elections  has  little  to 
recommend  it.  We  already  have  too  many  elections,  and, 
besides  adding  to  the  burden  of  public  expense,  a  multipli- 
cation of  elections  would  still  further  complicate  our  gov- 
ernmental machinery  and  reduce  the  relative  amount  of  public 
interest  that  could  be  brought  to  bear  at  any  given  election." 
It  is  a  prime  defect  of  the  movement  for  nominations  by 
direct  primaries  that  it  increases  unduly  the  number  and  ex- 
pense of  elections.  That  device  cannot  be  expected  to  attain 
the  desired  results  unless  combined  with  the  principle  of 
the  short  ballot.^^  There  should  be  both  a  decrease  in  the 
number  of  elections  and  a  reduction  of  the  number  of  elective 
offices. 

The  embodiment  in  our  forms  of  government  of  the  prin- 
ciples of  the  long  ballot  and  of  the  separation  of  powers 
has  necessitated  a  stronger  organization  of  political  parties 
and  greater  activity  on  their  part  than  would  otherwise  have 
been  the  case.  The  parties  have  assumed  the  functions  of 
filling  the  numerous  petty  elective  offices  and  of  forming  a 
connective  tissue  to  bind  together  the  separated  departments 
of  government.^^     Through  the  exercise  of  these   functions 

"C.  Nordhoff  in  North  American  Review,  cxiii,  p.  327,  quoted  by 
Beard,  The  Ballot's  Burden,  Political  Science  Quarterly,  xxiv,  p.  609. 

"See  F.  H.  Garver,  Nine  Elections  in  One  Year,  American  Political 
Science  Review,  iii,  p.  433- 

"  Merriam,  Primary  Elections,  p.  167. 

"Ford,  Rise  and  Growth  of  American  Politics,  p.  215. 

181 


AMERICAN  STATE  ADMINISTRATION 

the  power  of  the  poHtical  party  has  become  so  great  as  to 
be  the  controUing  force  in  the  government.     It  has  become 
the   power  behind   the   throne.     The   ostensible   government 
has  become  merely  a  false  face  to  mask  the  real  power  of 
the  political   party.     Hence,   in  order  that  the  people  may 
control  their  government,  it  is  necessary  first  that  they  control 
the   organization   which   in   turn   controls   the   government.^* 
The  realization  of  this  fact  has  led  to  a  movement  for  the 
democratization  of  the  political  party  and  the  legalization  of 
its  machinery.     Many  of  the  operations  of  the  party  system 
have  thus  been  brought  under  legislative  control  through  the 
enactment  of  elaborate  statutes.     Provision  is  also  made  in 
many  states   for   central  administrative  control  of  elections, 
through  the  secretary  of   state  or  through  state  boards  of 
election  commissioners,  state  boards  of  canvassers,  or  similar 
bodies,  usually  composed  of  ex  officio  members,  which  act 
as  boards  of  canvass  and  of  contest,  and  also  sometimes  ap- 
point the  county  boards  which  in  turn  appoint  the  election 
officers.    The  multiplication  of  elections  not  only  necessitates 
an  elaborate  and  expensive  administrative  organization,  but 
also  transforms  and  perverts  the  political  party  into  an  office- 
controlling  and  distributing  agency  for  the  benefit  of  the  party 
machine.     The  short  ballot,  if  introduced  in  state  elections, 
would  tend  to  curtail  the  undue  extension  and  to  prevent 
to  some  extent  the  perversion  of  the  party  system  in  the 
states. 

The  short  ballot  is  a  device  which  aims  in  the  direction 
of  needed  simplification  of  governmental  machinery.  The 
simpler  any  form  of  government  is,  the  better  will  the  people 
who  live  under  it  be  able  to  understand  it,  and  the  better 
any  people  are  able  to  understand  their  government,  the 
greater  control  they  will  be  able  to  exercise  over  it.  Under 
the  system  of  the  long  ballot,  not  only  are  the  people  un- 
able to  exercise  an  effective  control  over  their  government, 

"  McLaughlin,  The  Courts,  the  Constitution,  and  Parties,  p.  158. 

182 


SELECTION  AND  REMOVAL  OF  OFFICERS 

but  there  is  a  lack  of  concentrated  responsibility  for  the 
management  of  the  public  business,  without  which  harmony 
and  efficiency  in  administration  are  scarcely  attainable.  The 
short  ballot  not  only  tends  to  increase  democratic  control 
of  government,  but  also  tends  to  integrate  the  administration 
by  reducing  the  possibilities  of  internal  friction  among  the 
administrative  personnel.  It  thus  largely  reconciles  the  some- 
times apparently  conflicting  principles  of  democratic  control 
of  government  and  efficiency  in  administration.  The  short 
ballot  is  at  the  heart  of  the  problem  of  reorganizing  the 
state  administration  into  a  small  number  of  homogeneous 
departments  under  responsible  heads  in  the  interests  of  econ- 
omy and   efficiency. 

Without  the  short  ballot  the  state  administration  cannot 
have  a  real  directing  and  controlling  head.  Furthermore,  if 
the  head  of  the  state  administration,  who,  under  the  short 
ballot  plan,  remains  on  the  elective  list,  is  to  be  justly  held 
responsible  for  the  conduct  of  public  affairs,  he  should  be 
vested  with  power  commensurate  with  his  responsibility.  This 
would  require  not  only  that  appointment  should  largely  dis- 
place election  in  the  selection  of  administrative  officers,  but 
also  that  the  power  of  appointment  of  at  least  the  more  im- 
portant of  such  officers  should  be  vested  solely  in  the  head 
of  the  administration,  and  not  made  subject  to  the  confirma- 
tion of  the  senate  or  other  body. 

In  spite  of  the  fact  that  the  need  of  the  short  ballot  is 
universally  recognized  by  those  competent  to  judge,  its  prog- 
ress, especially  in  the  state  governments,  is  slow.  In  this 
respect  they  lag  behind  the  municipalities,  while  the  National 
Government  always  has  had  a  short  ballot.  Occasional  slight 
advances  toward  the  short  ballot  in  state  elections,  however, 
may  be  noted  here  and  there.  Thus,  the  state  railroad  com- 
missioners and  the  state  printer  in  California,  the  superin- 
tendent of  public  instruction  in  Iowa,  and  the  state  food 
and  dairy  commissioner  in  Ohio  have  recently  been  trans- 


AMERICAN  STATE  ADMINISTRATION 

ferred  from  the  elective  to  the  appointive  list  of  state  of- 
ficers. In  Ohio  and  New  York,  however,  attempts  of  a  more 
general  character  made  in  1913  and  1915,  respectively,  to  in- 
troduce a  shorter  state  ballot  through  the  method  of  con- 
stitutional revision  failed.^^  Pennsylvania  and  New  Jersey 
already  have  a  comparatively  short  state  ballot.  In  the  for- 
mer state  the  secretary  of  the  commonwealth,  the  attorney- 
general,  the  superintendent  of  public  instruction,  and  other 
state  officers  are  appointed  by  the  governor,  while  in  the 
latter  the  governor  is  the  only  state  executive  officer  elected 
by  popular  vote.  The  principle  of  the  short  ballot,  however, 
as  applied  in  these  states  is  vitiated  through  the  existence 
of  constitutional  provisions  vesting  the  appointment  of  cer- 
tain state  executive  officers  in  the  legislature  or  requiring 
the  confirmation  of  the  senate  to  the  governor's  appoint- 
ments. If  the  governor  were  given  the  unconditional  power 
of  appointing  all  the  important  officers  in  the  state  adminis- 
tration, a  mighty  stride  in  advance  towards  democratic  con- 
trol and  efficient  government  would  be  taken.  But  the  short 
ballot,  in  and  by  itself,  is  not  a  panacea  for  all  the  ills  of  the 
body  politic.  If  the  governor  is  to  be  the  real  head  of  the 
state  administration,  the  latter  must  be  reorganized  into  a 
few  homogeneous  departments,  and  over  the  heads  of  these 
departments  the  governor  should  have  not  only  the  power 
of  unconditional  appointment,  but  also  the  powers  of  disci- 
pline, suspension,  and  removal. 

Appointment  and  election,  in  themselves,  merely  provide 
for  the  exercise  of  control  by  the  selecting  authority  at  the 
time  of  selection,  and  do  not  usually  or  necessarily  imply 
control  after  selection.  In  order  that  some  degree  of  control 
over  an  officer  after  his  appointment  or  election  may  be  as- 
sured,  it   is   necessary  that   there   should  be   supplied   some 

"The  proposed  New  York  plan,  however,  was  not  a  thoroughgoing 
application  of  the  short  ballot  principle,  for  the  attorney-general  and 
the  state  comptroller  were  retained  upon  the  list  of  elective  officers. 

184 


SELECTION  AND  REMOVAL  OF  OFFICERS 

method  of  terminating  his  membership  in  the  administration 
when  such  a  step  is  desired.  The  methods  provided  in  the 
states  for  terminating  the  official  relation  are  as  various  and 
show  as  little  evidence  of  systematic  planning  as  in  the  case 
of  the  methods  provided  for  creating  the  relation.  Among 
the  more  important  ways  of  terminating  the  relation  may  be 
mentioned  expiration  of  term ;  death  ;  resignation  ;  forfeiture ; 
loss  of  qualifications ;  legislative  removal  through  direct  ac- 
tion, through  impeachment,  through  the  abolition  of  the  of- 
fice, or,  practically,  through  failure  to  make  the  necessary 
appropriation  for  the  salary ;  popular  removal  through  tlie 
recall;  judicial  removal;  and  removal  by  administrative  ac- 
tion. 

The  method  of  removing  state  officers  through  impeach- 
ment by  the  legislature  is  found  generally  in  the  states,  ex- 
cept in  Oregon.  Impeachment  may  take  place  only  for  certain 
causes,  which  are  specified  in  the  constitutions  and  dififer 
in  different  states.  This  method  of  exercising  control  over 
administrative  officers  is  seldom  resorted  to,  for  it  is  too 
cumbrous  for  practical  use. 

Removal  of  state  officers  through  the  popular  recall  was 
first  provided  for  in  Oregon  in  1908  and  has  since  been 
adopted  in  a  number  of  other,  principally  Western,  states. 
It  is  usually  made  applicable  only  to  elective  state  officers. 
Such  officers  cannot  be  held  accountable  by  their  administra- 
tive superiors,  for  the  method  of  administrative  removal  in 
the  states  is  seldom  applied  to  elective  officers.  The  intro- 
duction and  growth  of  the  recall,  therefore,  is  a  logical  result 
of  the  practice  of  electing  numerous  state  officers  by  popular 
vote.  If  frequently  used,  it  would  have  the  effect  of  increas- 
ing unduly  the  number  and  expense  of  elections,  and  would 
tend  to  interfere  with  the  continuity  of  administration.  The 
recall  is  aimed,  however,  at  a  real  evil,  viz. :  lack  of  responsi- 
bility on  the  part  of  the  many  practically  independent  elec- 
tive state  officers,  but,  in  most  cases,  it  is  the  wrong  method 

185 


AMERICAN  STATE  ADMINISTRATION 

of  attempting  to  remedy  the  evil.  The  proper  method  of 
reaching  the  difficulty  is  through  subjecting  such  state  offi- 
cers to  adequate  control  by  administrative  superiors.  The 
recall  should  not  be  applied  to  officers  not  properly  policy- 
determining,  for  the  same  reason  that  such  officers  should 
not  be  elective.  In  the  case  of  the  head  of  the  state  adminis- 
tration, since  he  is  a  policy-determining  officer,  and  since 
there  is  no  administrative  superior  by  whom  he  can  be  held 
responsible,  the  method  of  removal  through  the  recall  might 
properly  be  applied  to  him,  subject  to  reasonable  restrictions. 
But  the  responsibility  of  all  lesser  administrative  officers  to 
the  popular  will  should  be  insured  indirectly  through  the 
control  which  the  people  would  exercise  by  election  and  recall 
over  the  head  of  the  administration,  and  through  the  power 
of  the  latter  to  appoint  and  remove  his  administrative  sub- 
ordinates. 

The  short  ballot,  therefore,  combined  with  administrative 
removal  would  render  the  recall  largely  unnecessary,  except 
as  applied  to  the  head  of  the  administration.  If  the  short 
ballot  is  extensively  introduced  in  state  administration,  it 
will  have  the  effect  of  increasing  the  power  of  the  head 
of  the  administration,  because  the  appointment  of  a  number 
of  officers  hitherto  elective  will  necessarily  be  placed  in  his 
hands.  This  increase  of  power  would  not  be  dangerous 
because  it  would  be  combined  with  increased  responsibility. 
But,  in  order  to  guard  against  the  possibility  of  abuse  of 
power,  the  recall  might  be  made  applicable  to  the  head  of  the 
administration. 

The  power  of  removal  by  an  administrative  superior  may 
be  exercised  in  two  ways :  either  summarily  or  by  quasi- 
judicial  process.  In  a  centralized  administration,  such  as 
that  of  the  United  States  Government,  summary  removal  is 
the  usual  method.  It  is  largely  from  this  power  of  summary 
removal  that  the  president  derives  his  power  of  control  and 
direction  over  the  Federal  administrative  officers  and  services. 

i86 


SELECTION  AND  REMOVAL  OF  OFFICERS 

In  a  decentralized  administration,  however,  such  as  that  of 
the  states,  the  power  of  summary  removal  is  the  exception 
rather  than  the  rule.  Ordinarily,  where  the  power  of  removal 
in  such  an  administration  exists  at  all,  it  can  only  be  exer- 
cised as  result  of  a  quasi-judicial  process.  That  is,  the 
officer  whom  it  is  proposed  to  remove  must  be  notified,  before 
his  successor  is  appointed,  of  the  proceeding  against  him, 
and  must  be  granted  a  hearing  before  the  removing  author- 
ity, at  which  the  charges  against  him  are  presented,  and  at 
which  he  has  an  opportunity  of  defending  himself  against 
such  charges. 

In  the  state  administration,  therefore,  even  where  the  power 
of  removal  is  granted,  its  exercise  is  ordinarily  so  restricted 
that  it  is  of  little  use  except  in  flagrant  cases.  Many  cases 
occur  in  which  the  administrative  machinery  would  work 
more  smoothly  and  efficiently  if  certain  members  of  the  ad- 
ministration were  separated  from  it.  Nevertheless,  no  sub- 
stantial charges  could  be  brought  against  such  members  which 
would  justify  removal  by  the  quasi-judicial  method.  More- 
over, cases  frequently  occur  where  the  exercise  of  the  power 
of  removal  is  a  more  drastic  method  of  control  than  the  situa- 
tion requires.  To  such  cases  the  deterrent  effect  of  threat- 
ened removal  might  be  applied,  for  the  potency  of  removal 
as  a  means  of  administrative  control  is  not  to  be  measured 
by  the  frequency  of  its  exercise,  as  its  mere  existence  may 
render  its  exercise  unnecessary.  But,  in  order  properly  to 
handle  such  cases,  there  should  be  added  to  the  negative 
power  of  threatened  removal  the  positive  powers  of  tem- 
porary suspension  from  office  and  of  administrative  discipline 
through  demotion  or  similar  means.  These  means  of  control, 
however,  are  seldom  found  in  state  administration.  Indeed, 
in  many  cases,  no  power  of  administrative  removal  exists, 
even  by  the  quasi-judicial  method,  and,  under  these  circum- 
stances, the  governor  stands  off  exasperatingly  powerless  to 
remedy   flagrant   conditions   of   administrative   incompetence, 

187 


AMERICAN  STATE  ADMINISTRATION 

ineptitude,  and  lack  of  cooperation,  and  the  administration 
stands  divided  against  itself,  wasting  its  energy  through  in- 
ternal friction.  Where,  on  the  other  hand,  the  power  of 
administrative  removal  and  discipline  exists,  it  should  be 
vested  only  in  such  officers  as  can  be  held,  either  directly  or 
indirectly,  accountable  to  the  people  for  the  trust  imposed 
in  them. 


REFERENCES  AND  COLLATERAL  READING 

General 

GooDNOW,   F.   J.     Principles   of   the   Administrative   Law  of  the 

United  States,  Bk.  iv,  Chs.  II  and  VI. 
Mechem,   F.  R.     The  Law  of  Public   Offices  and  Officers,  Bks. 

i  and  ii. 
Peterson,  H.  J.  and  Patton,  O.  K.     "Selection  and  Removal  of 

Public  Officials  in  Iowa,"  Iowa  Applied  History  Series,  ii,  Nos. 

6  and  7. 
Wyman,    B.     Principles   of   the  Administrative   Law   Governing 

the  Relations  of  Public  Officers,  Ch.  VI. 

The  Short  Ballot 

Beard,  C.  A.     "The  Ballot's  Burden,"  Political  Science  Quarterly, 

xxiv,  pp.  589-614. 
Childs,  R.  S.     Short  Ballot  Principles. 
.     "The  Short  Ballot,"  Outlook,  July  17,  1909,  reprinted  in 

Reinsch,  Readings  on  American  State  Government,  pp.  372- 

383. 
City  Club  of  Chicago.     The  Short  Ballot  in  Illinois,  igi2. 

Civic  League  of  St.  Louis.     The  Short  Ballot,  1914. 

De  Witt,  B.  P.     The  Progressive  Movement,  pp.  206-210. 

Kales,  A.  M.     Unpopular  Government  in  the  United  States,  Part 

I,  Ch.  II. 
Municipal  Association  of  Cleveland.     The  Necessity  of  the  Short 

Ballot  in  Ohio,  1912. 

.     The  Need  of  a  Short  Ballot  in  Ohio,  191 1. 

New  York  Short  Ballot  Organization.     The  Short  Ballot  in  the 

State  of  New  York,  1914. 

188 


SELECTION  AND  REMOVAL  OF  OFFICERS 

Proceedings  and  Debates  of  the  Ohio  Constitutional  Convention 
of  1912,  pp.  956-1012. 

Reed,  T.  H.     Government  for  the  People,  Ch.  VI. 

Sedgwick,  A.  G.     The  Democratic  Mistake. 

The  Short  Ballot  Bulletin,  February,  191 1 — date,  passim. 

Thompson,  B.  M.  "Are  Too  Many  Executive  Officers  Elective?" 
Michigan  Law  Review,  vl,  pp.  228-237. 

Updyke,  F.  a.  Suggestions  for  Applying  the  Short  Ballot  Prin- 
ciple in  New  Hampshire,  1912. 

Wilson,  Woodrow.  Civic  Problems,  address  before  Civic  League 
of  St.  Louis,  1909. 

• .     "Hide-and-Seek  Politics,"Aror/A  American  Review,  May, 

1910,  pp.  585-601. 

Young,  J.  T,     The  New  American  Government  and  Its  Work,  pp. 


618-626. 


Removal  and  The  Recall 


Ashley,  R.  L.    "Removal  of  Public  Officials,"  in  McLaughlin  and 

Hart,  Cyclopedia  of  American  Government,  iii,  pp.  177-180. 
Bacon,  E.  M.  and  Wyman,  M.     Direct  Elections  and  Law-Making 

by  Popular  Vote,  Ch.  II. 
Barnett,  J.  D.     The  Operation  of  the  Initiative,  Referendum  and 

Recall  in  Oregon. 
Beard,  C.  A.  and  Shultz,  B.  E.     Documents  on  the  State-Wide 

Initiative,  Referendum,  and  Recall. 
Burgess,  J.  W.    Reconciliation  of  Government  and  Liberty,  pp. 

375-378. 
De  Witt,  B.  P.    The  Progressive  Movement,  Ch.  XL 
DoDD,   W.   F.     "The    Recall   and   the   Political    Responsibility   of 

Judges,"  Michigan  Law  Revieiv,  x,  December,  191 1,  pp.  79-92- 
GiLBERTSON,  H.  S.     "The  Recall— Its  Provisions  and  Significance," 

Annals  of   the  American  Academy   of  Political  and  Social 

Science,  xliii,  pp.  216  ff. 
Kales,  A.  M.     Unpopular  Government  in  the  United  States,  Ch. 

IX. 
Kettleeorough,   C.     "Removal   of   Public   Officers,  A   Ten-Year 

Review,"  American  Political  Science  Review,  viii,   pp.  621- 

629. 
Lowell,  A.  L.    Public  Opinion  and  Popular  Government,  pp.  147- 

149. 
MuNRO,  W.  B.,  ed.     The  Initiative,  Referendum,  and  Recall. 

189 


AMERICAN  STATE  ADMINISTRATION 

Oberholtzer,    E.    p.    Referendum,    Initiative,    and    Recall    in 

America. 
Proceedings  and  Debates  of  the  Ohio  Constitutional  Convention 

of  ipi2,  pp.  1 292- 1 295. 
Reed,  T.  H.     Government  for  the  People,  Ch.  IX. 
Transactions  of  the  Commonwealth  Club  of  California,  vi,  pp. 

153-236. 
Wilcox,  D.  F.    Government  by  All  the  People,  Part  iv. 


CHAPTER   IX 
THE  STATE  CIVIL  SERVICE 

The  state  civil  service  comprises  all  officers  and  employees 
of  the  state  except  those  engaged  in  the  military  or  naval' 
forces.  Of  the  two  principal  methods  of  selecting  such 
officers  and  employees,  those  of  election  and  appointment,  the 
former,  as  pointed  out  in  the  next  preceding  chapter,  places 
the  real  selection  of  subordinate  officers  in  the  hands  of  the 
party  machine.  Hence,  when  unwise  selections  are  made  by 
the  method  of  popular  election,  the  people  have  no  one  but 
themselves  to  blame,  for  there  is  no  one  upon  whom  the  re- 
sponsibility may  be  officially  placed.  It  is  not  the  people  who 
are  at  fault,  but  the  system.  It  is  impracticable  for  subordi- 
nate administrative  officials  to  be  selected  by  the  people  upon 
the  basis  of  approved  tests  of  fitness  for  the  office,  for  the 
people  lacR  the  information  upon  which  to  base  an  intelligent 
judgment  of  their  qualifications.  Moreover,  they  are  con- 
fined in  their  choice  to  two  or  more  candidates  who  have  been 
nominated,  or  selected  as  candidates,  by  the  party  machines 
upon  the  basis  of  service  to  the  party  rather  than  upon  that 
of  fitness  for  the  office.  Hence,  the  method  of  election  by  the 
people  of  all  except  the  principal  policy-determining  officers 
is  lacking  in  that  power  of  discrimination,  upon  which  any 
system  of  selection  on  the  ground  of  fitness  must  be  based. 
In  the  case  of  the  principal  policy-determining  officers,  or,  at 
least,  in  that  of  the  head  of  the  administration,  political  con- 
trol through  popular  election  is  necessary  in  order  to  insure 
democratic  government,  but,  in  the  case  of  the  subordinate 
ministerial  officers  and  employees,  the  attempt  to  apply  politi- 

191 


AMERICAN  STATE  ADMINISTRATION 

cal  control  through  popular  election  fails  for  the  reason  that 
such  nominally  elective  officers  are  in  reality  appointed  by  the 
dominant  party  machine  or  by  a  bi-partisan  combination  of 
political  "experts."  This  leads  to  the  demoralization  of  the 
spoils  system.  The  introduction  of  the  short  ballot,  therefore, 
is  a  necessary  preliminary  to  the  full  introduction  of  the  merit 
system  of  selection  in  the  state  civil  service. 

The  mere  introduction  of  the  short  ballot  in  the  state  gov- 
ernment, however,  will  not  in  itself,  of  course,  insure  the  in- 
troduction or  maintenance  of  the  merit  system  of  selection. 
The  method  of  appointment,  which,  under  the  short  ballot 
plan,  would  displace  that  of  election,  would,  particularly  if 
combined  with  the  power  of  removal,  be  conducive  to  that 
administrative  efficiency  which  is  one  of  the  aims  of  the  merit 
system  of  selection.  This  result  could  be  expected,  however, 
only  on  the  condition  that  such  powers  of  appointment  and 
removal  are  exercised  by  an  administrative  superior  who  acts 
under  a  due  sense  of  responsibility,  not  to  any  party  ma- 
chine, but  to  the  people  as  a  whole.  In  the  absence  of  such 
a  condition,  the  method  of  appointment  by  an  administrative 
superior,  however  much  to  be  preferred  in  other  respects  to 
that  of  popular  election,  may  also  lead  to  the  evils  of  the 
spoils  system. 

During  the  first  half  of  the  nineteenth  century,  the  spoils 
system  in  the  United  States  rose  to  its  height.  This  was 
due  in  large  measure  to  the  dominance  of  those  principles 
which  were  supposed  to  be  necessary  to  the  maintenance  of 
real  democracy,  viz.,  that  as  many  officers  as  possible  should 
be  elective,  and  that  there  should  be  short  terms  or  rotation 
in  office,  in  order  to  prevent  the  establishment  of  a  bureau- 
cracy, or  office-holding  aristocracy,  out  of  touch  with  the 
common  people.  This,  in  turn,  was  based  on  the  idea  that 
any  man  of  ordinary  ability  is  capable  of  filling  a  public  office 
satisfactorily,  or,  in  other  words,  that  no  special  training  for 
public  service  is  necessary.    This  point  of  view  was  expressed 

192 


THE  STATE  CIVIL  SERVICE 

by  Mr.  Simmons  in  the  New  York  Constitutional  Convention 
of  1846  as  follows :  "He  considered  it  not  useful  to  the  state, 
to  have  any  laws  or  provisions  based  on  the  idea  of  the  im- 
portance of  selecting  distinguished  talent  for  office.  He 
thought  distinguished  talent  had  done  more  hurt  than  good 
in  the  world.  He  thought  the  knowledge  that  was  the  most 
useful  was  the  common  every-day  average  sense  and  practi- 
cal knowledge  of  the  people ;  and  hence  he  was  afraid  of  any 
precocity — of  any  eccentric  or  cometic  star,  that  might  arise 
in  the  political  firmament.  He  would  prefer,  he  had  no 
doubt  it  would  be  better  and  that  the  world  will  sometime 
come  to  it,  that  the  mass  of  the  people,  the  average  bulk 
of  the  people,  would  be  able  to  take  turns  in  doing  the  public 
business.  But  if  we  went  on  on  this  principle  of  selecting 
and  attaching  importance  to  immense  talent  as  to  eligibility 
to  office,  by  and  by  we  should  get  at  the  doctrine  which  pre- 
vailed in  monarchies,  of  not  selecting  their  kings  out  of  their 
own  people.  .  .  ,  He  thought  we  should  never  really  rest  on 
the  foundation  of  free  government — a  government  of  law  as 
distinguished  from  arbitrary  will — until  we  attached  much 
less  importance  to  office  and  came  down  to  the  opinion  that 
we  had  thousands  of  men  fit  for  any  office ;  that  no  office 
required  more  than  one  occupant ;  and  that  we  could  take 
turns."  ^ 

As  long  as  the  tasks  of  government  were  comparatively 
simple,  the  principle  of  rotation  in  office  did  not,  perhaps, 
cause  serious  injury.  But  with  the  assumption  ^ince  the 
Civil  War  of  many  new  economic,  regulative  and  semi-scien- 
tific functions,  the  public  business  has  become  more  intricate 
and  there  has  developed  a  corresponding  need  for  trained 
men  in  government  service — men  with  technical  knowledge 
and  scientific  skill.  Economy  and  efficiency  in  the  adminis- 
tration of  the  state  government  cannot  now  be  secured  with- 

^  Debates  in  the  New  York  Constitutional  Convention  of  1846  (Argus 
ed.),  p.  220. 

193 


AMERICAN  STATE  ADMINISTRATION 

out  trained  and  competent  men  in  the  civil  service;  and  the 
gradually  increasing  extent  of  the  functions  performed  by 
the  state  government  render  it  continually  more  important 
that  the  merit  system  of  securing  public  servants  should  be 
extended  into  all  branches  of  the  public  service  where  it  is 
feasible.  The  number  of  officers  and  employees  in  the  vari- 
ous services,  national,  state,  and  local,  has  greatly  increased, 
thus  increasing  the  possibilities  both  for  good  and  for  evil 
involved  in  their  selection.  If  there  is  to  be  a  clean  sweep 
of  the  purely  subordinate  and  ministerial  offices  at  every 
change  of  party  control,  it  will  be  impossible  to  secure  or 
retain  the  requisite  training  and  experience  in  office.  There 
is  no  Democratic  or  Republican  way  of  building  highways, 
inspecting  factories,  or  maintaining  the  public  health.  Yet 
the  efficiency  of  the  work  in  the  state  highway,  factory,  and 
health  departments  has  frequently  been  endangered  through 
the  efforts  of  politicians  to  control  positions  in  such  depart- 
ments. "We  see,  for  example,  a  position  dealing  with  engi- 
neering problems  filled  by  an  ex-bartender  with  only  a  gram- 
mar school  education,  whose  only  engineering  experience  is 
engineering  the  campaign"  of  the  officer  who  appointed  him.^ 
It  has  long  been  unconstitutional  in  time  of  peace  to  quarter 
troops  on  private  individuals  without  their  consent;  but  the 
party  machine,  held  together  by  the  "cohesive  power  of  the 
public  plunder,"  regularly  pays  its  political  debts  by  quarter- 
ing its  henchmen  on  the  long-suffering  taxpayers. 

The  realization  of  these  evils  has  led,  since  the  Civil  War, 
to  a  long  struggle  between  the  reformers  and  the  politicians 
over  the  introduction  of  the  merit  system  in  the  selection  of 
public  servants.  The  agitation  has  been  principally  in  re- 
spect to  the  Federal  service,  and  it  was  there  that  the  reform- 
ers won  their  first  victory.  This  has  been  due  in  part  to  the 
greater   scope  and  complexity   of   Federal   functions   and  to 

*  Richard  Henry  Dana,  in  Proceedings  of  the  National  Civil  Service 
Reform  League,  I9i4>  P-  80. 

194 


THE  STATE  CIVIL  SERVICE 

the  greater  number  of  officers  and  employees  in  the  Federal 
service,  and  also,  perhaps,  in  part  to  the  fact  that  the  presi- 
dent's power  of  removal  has  been  more  complete  and  untram- 
meled  than  that  of  the  state  governor.  The  Pendleton  Civil 
Service  Reform  Act,  passed  by  Congress  in  1883,  has  served 
in  many  respects  as  a  model  for  the  state  laws  subsequently 
passed.  State  legislation  on  the  subject  may  be  divided  into 
two  periods,  the  first  following  immediately  upon  the  pas- 
sage of  the  Federal  law,  and  being  signalized  by  the  passage 
of  the  New  York  law  of  18S3  and  that  of  Massachusetts  in 
the  following  year.  A  period  of  comparative  inactivity  then 
ensued  until  1905,  since  when  similar  laws  have  been  en- 
acted in  a  number  of  states,  beginning  with  Wisconsin  and 
Illinois  in  1905,  followed  by  Colorado  in  1907  and  New  Jer- 
sey in  1908.  In  191 1  the  Illinois  law,  which  had  previously 
applied  only  to  appointments  in  the  state  charitable  institu- 
tions, was  extended  to  practically  the  whole  state  service,  and, 
in  the  following  year,  the  Colorado  law  was  similarly  ex- 
tended. In  1913,  civil  service  statutes  were  enacted  in  Con- 
necticut, California,  and  Ohio,  while,  in  191 5,  Kansas  became 
the  tenth  state  with  such  a  law  on  her  statute  books.  In  the 
same  year,  a  civil  service  law  was  enacted  in  Louisiana,  but 
it  applies  only  to  state  employees  at  the  port  of  New  Or- 
leans, 

During  191 5,  however,  a  slight  reaction  against  civil  serv- 
ice reform  appeared  in  some  parts  of  the  country,  the 
opponents  of  the  reform  making  determined  efforts  in  a  num- 
ber of  state  legislatures  to  repeal  or  weaken  the  civil  service 
laws.  They  were  most  successful  in  Connecticut,  where  the 
law  was  amended  so  as  to  make  its  enforcement  practically 
optional  with  the  heads  of  departments.  Such  ups  and 
downs  are  to  be  expected  in  carrying  through  any  reform 
which  arouses  the  hostility  of  powerful  interests.  Changes 
in  the  civil  service  laws  are  likely  to  be  more  frequent  just 
before  and  after  a  change  in  the  party  control  of  the  legisla- 

195 


AMERICAN  STATE  ADMINISTRATION 

tiire.  Even  in  the  positive  enactment  of  civil  service  laws, 
partisan  considerations  frequently  enter  through  the  insertion 
of  so-called  "blanket  clauses,"  designed  to  protect  the  em- 
ployees then  in  the  service.  The  civil  service  laws  do  not 
embody  the  merit  principle  perfectly,  inasmuch  as  various 
provisions  which  work  against  the  perfect  application  of  the 
principle  have  been  inserted  by  way  of  compromise  with  the 
open  opponents  of  such  measures  and  with  those  who  seek 
the  appearance  of  catering  to  the  popular  demand  for  civil 
service  reform,  but  who  are  in  reality  opposed  to  it. 

Although,  as  previously  pointed  out,  the  Federal  civil  serv- 
ice law  has  served  as  a  model  for  the  state  laws,  nevertheless 
the  centralized  character  of  Federal  administration,  as  con- 
trasted with  the  decentralization  in  state  administration,  has 
produced  a  difference  with  respect  to  the  relation  of  the  civil 
service  commission  to  the  head  or  nominal  head  of  the  ad- 
ministration. In  the  Federal  Government,  the  commission 
acts  more  or  less  under  the  direction  of  the  president,  while 
in  the  states  the  commission  is  largely  independent  of  the 
governor  in  administering  the  civil  service  law.  The  state 
laws  also  differ  among  themselves  in  respect  to  the  amount 
of  discretion  left  to  the  commission.  In  some  states,  the  laws 
are  brief,  thus  leaving  many  details  to  be  governed  by  the 
rules  of  the  commission,  while  other  laws  are  more  elabo- 
rately detailed  in  character,  thus  leaving  less  to  the  discre- 
tion of  the  commission.^ 

"The  state  civil  service  laws  of  the  United  States  may  be 
divided  into  two  groups  on  the  basis  of  their  scope :  The 
first  group  containing  those  acts  which  apply  only  to  the  state 
services,  and  the  second  comprising  those  which  extend  to 


'The  authority  of  the  commission  to  make  rules  has  been  held  not 
to  be  a  delegation  of  legislative  power.     People  vs.  Kipley,  171,  111.,  44- 

From  this  point  on,  the  present  chapter  is  largely  based  on  "A  Report 
on  Civil  Service  Laws,"  by  A.  C.  Hanford,  in  the  Report  of  the  Effi- 
ciency and  Economy  Committee  of  Illinois,  pp.  911-938. 

196 


THE  STATE  CIVIL  SERVICE 

both  the  state  and  local  services.  The  laws  applying  to  both 
state  and  local  services  may  in  turn  be  subdivided  into  those 
which  centralize  the  administration  of  the  entire  system  in 
the  hands  of  a  single  commission,  and  those  which  divide  the 
control  between  state  and  local  civil  service  boards.  In  the 
first  group,  civil  service  commissions  had  already  been  estab- 
lished in  the  larger  cities,  and  they  were  left  to  continue  their 
work  without  change  upon  the  enactment  of  the  state  law. 
In  the  second  group,  one  notices  two  distinct  types  of  ad- 
ministration. In  New  York  the  law  applies  directly  to  the 
state,  counties,  cities  and  villages,  with  the  state  civil  service 
board  in  charge  of  the  system  in  the  state,  counties  and  vil- 
lages. In  each  of  the  forty-seven  cities  the  law  is  adminis- 
tered by  a  municipal  civil  service  commission  appointed  by 
the  mayor,  but  subject  to  a  slight  supervisory  control  by  the 
state  board,  which  has  power  to  disapprove  of  and  rescind 
any  rule  established  by  the  municipal  commissioners,  may 
remove  a  city  civil  service  commissioner  under  certain  condi- 
tions, and  may,  if  the  local  authorities  fail  to  act,  provide  for 
the  appointment  of  commissioners  and  the  enactment  of 
rules.  The  city  commission  is  also  required  to  file  a  copy  of 
the  roster  of  its  classified  service  with  the  state  board,  and 
must  report  to  the  latter  upon  request. 

'Tn  the  states  of  Massachusetts  and  New  Jersey  there  is  a 
variation  in  scope,  and  a  difference  in  the  administration  of 
the  civil  service  system.  The  Massachusetts  law  applies 
directly  to  the  state  service  and  to  all  cities,  and  may  be 
adopted  in  any  town  of  over  12,000,  but  the  work  is  cen- 
tralized and  the  single  state  commission  has  charge  of  the 
whole  system.  In  addition  to  its  general  power  to  provide 
for  examinations  and  appointment  to  subordinate  municipal 
posts,  the  state  commission  of  Massachusetts  has  been  given 
the  extraordinary  authority  to  approve  the  appointment  of 
heads  of  departments  and  members  of  municipal  boards  made 
by  the  Mayor  of  Boston.     The  New  Jersey  system  is  similar 

197 


AMERICAN  STATE  ADMINISTRATION 

to  that  of  Massachusetts,  but  embodies  an  entirely  new  fea- 
ture in  its  "home  rule"  provision.  The  law  applies  directly 
to  the  state,  but  takes  effect  only  in  such  cities,  counties  and 
towns  and  other  local  divisions  as  may  adopt  the  same  by 
popular  vote.  But  as  in  Massachusetts,  a  single  state  com- 
mission has  complete  control  over  the  administration  of  the 
state  and  local  civil  service.* 

"The  purpose  of  each  of  the  state  civil  service  laws  is  tTie 
same — the  appointment  of  subordinate  public  employees  on 
the  basis  of  merit  and  competition,  and  without  reference  to 
politics.  Also  the  organization  of  the  several  commissions 
and  their  powers  and  duties ;  the  methods  of  examination  and 
appointment  to  the  classified  service ;  probation ;  temporary 
appointments;  the  regulation  of  promotions  and  transfers; 
the  certification  of  pay  rolls ;  the  various  penalties  and  pro- 
hibitions to  prevent  appointments  contrary  to  law,  and  the 
provisions  in  regard  to  corrupt  practices  are  very  similar  in 
the  several  laws.  The  principal  variations  in  state  civil  serv- 
ice legislation  have  been  in  regard  to :  ( i )  the  scope  of  the 
laws;  (2)  the  classification  of  the  service,  and  the  power  of 
the  commission  to  declare  positions  exempt  or  non-competi- 
tive; and  (3)  the  regulation  of  removals  from  the  classified 
service.  The  later  laws  contain  features  of  more  or  less  in- 
terest with  respect  to  the  keeping  of  efficiency  records  and 
the  standardization   of  the  service. 

"(i)  On  the  basis  of  scope,  the  state  civil  service  acts,  as 
already  noted,  may  be  divided  into  two  groups :  first,  those 
of  Wisconsin,  Illinois,  Colorado,  California  and  Connecticut 
which  apply  only  to  positions  in  the  state  service ;  and,  sec- 
ondly, those  of  New  York,  Massachusetts,  New  Jersey  and 
Ohio  which  apply  to  cities,  counties  (except  Massachusetts) 
and  other  local  divisions  as  well  as  to  the  state  service.  The 
New  Jersey  law  of  1908  is  doubtless  the  most  efficient  of  the 
civil  service  laws  from  the  standpoint  of  scope  and  the  cen- 

*  Cf.  Booth  vs.  McGuinness,  75  Atl.,  455. 

198 


THE  STATE  CIVIL  SERVICE 

tralization  of  the  administration  and  in  all  other  respects  save 
its  elasticity  in  permitting  exemptions  from  examination.  It 
extends  directly  to  the  state  service,  and  contains  a  "home 
rule"  feature,  which  makes  possible  its  adoption  by  any  city, 
county  or  school  district;  but  the  control  of  the  entire  system 
is  given  to  the  state  board.  Such  a  plan  involves  not  only  a 
concentration  of  administration,  but  has  a  decided  advantage 
in  eliminating  the  influence  of  local  politics  over  the  person- 
nel of  the  commission,  and  in  producing  economy  by  doing 
away  with  an  unnecessary  duplication  of  administrative  ma- 
chinery. 

"The  creation  of  separate  local  commissions  for  each  of 
the  cities  or  counties  in  a  state  leads  to  an  unnecessary  multi- 
plication of  machinery  and  additional  expense,  which  can  be 
avoided  through  centralized  administration  under  the  juris- 
diction of  the  state  commission.  The  supervision  of  local 
commissions  and  direct  administration  by  the  state  commis- 
sion not  only  leads  to  greater  harmony  in  the  operation  of 
the  civil  service  laws,  but  also  reduces  the  influence  of  local 
factors  opposed  to  the  vigorous  enforcement  of  the  merit 
system,  and  thus  leads  to  greater  economy  and  efficiency  in 
the  local  services. 

"In  connection  with  the  scope  of  civil  service  laws,  especial 
attention  should  be  called  to  the  fact  that  in  Wisconsin  legis- 
lative employees  are  under  the  civil  service  rules.  This  has 
the  effect  of  relieving  the  members  of  the  legislature  from 
much  disagreeable  importunity,  and  of  affording  them  more 
time  for  their  regular  duties. 

"(2)  Turning  to  the  classification  of  positions  under  civil 
service,  one  finds  a  difference  of  practice.  The  civil  service 
laws  divide  all  of  the  positions  in  the  public  service  into  the 
unclassified  and  the  classified,  the  former  containing  those 
places  which  are  not  under  the  civil  service  rules,  and  the 
latter  such  as  are  filled  according  to  the  provisions  of  the 
civil  service  law.    Under  the  New  York,  Wisconsin,  Illinois, 

199 


AMERICAN  STATE  ADMINISTRATION 

Colorado,  New  Jersey  and  Ohio  acts,  the  classified  service 
includes  all  positions  in  the  public  service,  except  those  which 
are  specifically  mentioned  in  the  statute  as  being  unclassified. 
In  Massachusetts,  on  the  other  hand,  the  civil  service  board 
exercises  considerable  discretion  in  determining  what  posi- 
tions shall  be  classified,  although  it  has  extended  the  rules  to 
practically  all  important  places,  while  in  California  the  com- 
mission may  by  unanimous  resolution  place  any  position  in 
the  unclassified  service. 

"In  general,  appointments  to  positions  in  the  classified 
service  are  made  from  among  the  three  persons  graded 
highest  as  the  result  of  a  competitive  examination,  or  by  the 
appointment  of  the  highest  person  only,  as  in  Illinois.  The 
Illinois  provision  deprives  the  appointing  officer  of  any  dis- 
cretion, and  practically  places  the  appointing  power  in  the 
hands  of  the  civil  service  commission.  In  operation,  too,  this 
provision  at  times  causes  delay  in  filling  vacancies — as  if  the 
first  person  certified  declines  the  appointment,  it  is  necessary 
to  ask  for  another  certification — and  this  procedure  may  have 
to  be  repeated  several  times.  The  certification  of  three  names 
would  seem  to  be  sufficient  limitation  to  ensure  the  selection 
of  candidates  technically  qualified ;  and  at  the  same  time  to 
give  the  appointing  officer  a  reasonable  discretion  in  consider- 
ing questions  of  adaptability  to  a  particular  position  which  it 
is  difficult  to  test  by  a  general  system  of  examination. 

"There  are  certain  places  of  a  technical  or  confidential 
character  for  which  competition  has  not  been  regarded  as 
practicable,  and  in  most  of  the  laws  the  civil  service  board 
has  been  given  considerable  power  to  exempt  a  position  from 
examination  or  provide  for  its  filling  upon  a  non-competitive 
test.  In  this  respect  the  laws  of  New  York,  Wisconsin  and 
New  Jersey  are  the  most  liberal,  as  they  divide  the  service 
into  exempt,  competitive  and  non-competitive  classes,  and 
give  the  commissioners  authority  to  exempt  additional  posi- 
tions from  examination,  or  declare  them  non-competitive,  on 

200 


THE  STATE  CIVIL  SERVICE 

the  grounds  that  competition  is  impracticable.     In  New  Jer- 
sey and  Wisconsin,   however,  the  commission  must  provide 
for   a   hearing  in   making   such  additional   exemptions.      In 
California  the  board  may  exempt  any  position  from  the  classi- 
fied service  by  unanimous  resolution ;  and  the  Colorado,  Mas- 
sachusetts  and   Ohio   laws,   while   more   strict   in   regard   to 
exemptions,  do  not  prohibit  the  filling  of  positions  without 
competition.     Besides  such  general  exemptions,  the  laws  of 
New  York,  Wisconsin,  Massachusetts,  Colorado  and  Ohio  also 
permit  the  civil  service  commission  to  suspend  the  rules  in 
the  case  of  a  designated  person,  so  as  to  allow  his  appoint- 
ment without  examination.    The  Illinois  statute,  on  the  other 
hand,  is  very  rigid  so  far  as  exemptions  are  concerned ;  all 
positions  in  the  classified  service,  without  exception,  are  filled 
after    competitive    examinations,    and    the    commission    has 
no  power  to  classify  a  place  as  exempt  or  non-competitive. 
In  this  respect  the  Illinois  plan  presents  certain  advantages 
over  the  New  York  system,  where  the  number  of  exempted 
positions  is  disproportionate  to  the  total  number  of  offices  in 
the  classified  service,  and  where  the  elasticity  of  the  scheme 
makes  political  raids  upon  the  civil  service  possible  with  every 
change  of  administration.     On  the  other  hand,  the  rigidity 
of  the  Illinois  law  has  disadvantages,  as  there  are  some  places 
of  a  highly  technical  character  which  can  best  be  filled  after 
a  proper  non-competitive  test.     The  specification  of  exempt 
positions  is  more  properly  an  administrative  than  a  legisla- 
tive function;  and  if  exemptions  are  determined  in  the  stat- 
utes, they  are  likely  to  be  made  in  many  cases  from  considera- 
tions  of    political    patronage.      A    discretionary    authority   to 
authorize  exemptions  or  non-competitive  examinations,  either 
for  specified  classes    of    positions    or    for    particular    places, 
would  introduce  a  useful  flexibility  in  the  system,  such  as  is 
provided  in  the  civil  service  laws  of  the  United  States  and 
in  most  other  states. 
"(3)   In  regard  to  removals  from  the  classified  service,  we 

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AMERICAN  STATE  ADMINISTRATION 

find  that  all  of  the  laws,  in  some  form  or  other,  contain  a 
prohibition  of  dismissals  for  political  reasons,  but  the  simi- 
larity ends  here;  and  there  is  a  difference  of  practice  in  re- 
stricting the  removal  power  of  appointing  officers.  The  early 
laws  did  not  contain  any  limitations  except  that  an  employee 
was  not  to  be  dismissed  for  political  reasons,  the  theory  be- 
ing that  if  the  method  of  appointment  was  carefully  guarded 
there  was  no  need  to  restrict  the  discretionary  power  of  the 
appointing  officer  in  discharging  a  subordinate.  But  recently 
the  tendency  has  been  in  the  opposite  direction,  and  today  the 
New  York  law  is  the  only  one  without  a  positive  restriction 
upon  removals.  In  Wisconsin,  New  Jersey,  Colorado  and 
Ohio,  the  only  limitations  are  that  an  employee  in  the  classi- 
fied service  shall  not  be  removed  except  for  cause,  that  he 
shall  be  furnished  with  a  written  notice  and  given  an  oppor- 
tunity to  answer  the  same,  and  that  a  copy  of  the  notice  etc., 
must  be  filed  with  the  civil  service  commission.  In  these  four 
states  the  appointing  power  is  given  rather  wide  discretion  to 
remove  a  subordinate,  so  long  as  he  does  not  make  the  dis- 
missal for  political  reasons  and  follows  the  general  procedure 
outlined  in  the  statute.  In  California,  removals  are  not  to  be 
made  except  for  cause  and  after  a  hearing,  but  the  civil 
service  board  is  given  concurrent  power  with  the  appointing 
officer  to  discharge  an  employee,  and  the  decision  of  either 
against  the  employee  is  made  final.  The  California  system 
does  not  limit  the  discretionary  power  of  the  appointing  offi- 
cer to  dismiss  an  incompetent  person  any  further  than  do 
the  Wisconsin  and  New  Jersey  plans,  but  from  the  standpoint 
of  discipline,  it  involves  a  division  of  responsibility.  Turn- 
ing to  the  laws  of  Massachusetts  and  Illinois  one  finds  a  still 
greater  restriction  upon  removals.  Under  the  Massachusetts 
act,  no  classified  employee  is  to  be  removed  except  for  cause 
and  after  a  hearing,  but  the  decision  of  the  removing  officer 
is  not  final  and  is  subject  to  review  by  the  courts.  In  Illi- 
nois, the  discretionary  power  of  the  appointing  officer  is  al- 

202 


THE  STATE  CIVIL  SERVICE 

most  completely  taken  away  and  the  sole  responsibility  for 
the  discharge  of  an  employee  rests  with  the  civil  service 
commission,  as  a  hearing  is  granted  before  the  commission 
in  all  cases,  and  the  decision  of  the  board  is  made  binding 
upon  the  superior  officer.  If  it  is  necessary  to  provide  for  an 
appeal  from  the  action  of  the  appointing  officer,  the  Illinois 
practice  is  much  better  than  that  of  Massachusetts,  for  the 
question  of  removal  is  an  administrative  one,  and  can  be 
more  satisfactorily  decided  by  a  board  than  by  the  courts. 

"It  may  be  questioned,  however,  whether  the  requirement 
of  a  formal  investigation  to  authorize  any  removal  from  the 
classified  service  is  not  unduly  restrictive.  This  provision 
protects  the  officer  or  employee  rather  than  the  public  service, 
and  may  be  said  to  give  a  special  and  unnecessary  privilege 
to  those  In  the  classified  service.  The  provision  is  likely  to 
encourage  lax  and  inefficient  service  which  falls  short  of  the 
point  where  formal  charges  can  be  sustained.  A  provision 
requiring  removals  to  be  reported  to  the  civil  service  com- 
mission and  authorizing  that  body  to  investigate  any  cases 
which  it  deemed  necessary,  with  a  power  to  reinstate  after 
investigation,  where  conditions  warrant  such  action,  should 
be  sufficient  to  prevent  removals  without  proper  cause.  All 
of  the  civil  service  laws  in  the  United  States  are  defective  in 
failing  to  provide  for  a  system  of  discipline  over  subordinates 
in  the  public  service  for  minor  shortcomings  which  are  not 
sufficient  to  justify  removal.  With  a  proper  system  of  disci- 
pline the  efficiency  of  the  public  service  could  be  much  im- 
proved. 

"Provisions  in  the  several  laws  of  more  or  less  interest 
from  an  administrative  standpoint  are,  briefly:  those  of  the 
Illinois  and  Ohio  laws  for  the  appointment  of  the  chief  ex- 
aminer upon  competitive  examination ;  the  division  of  the 
state  into  civil  service  districts  in  Ohio,  with  an  assistant  in 
charge  of  each ;  the  special  authorization  of  the  New  Jersey 
Board  to  bring  such  suits  as  may  be  necessary  to  secure  the 

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AMERICAN  STATE  ADMINISTRATION 

enforcement  of  the  law  and  rules,  and  the  duty  of  the  com- 
mission in  Ohio  to  report  to  the  governor,  or  the  mayor,  as 
the  case  may  be,  any  abuse  of  power  by  a  public  officer  in 
making  appointments  and  removals,  with  provision  that  such 
abuse  shall  be  sufficient  cause  for  the  dismissal  of  the  official. 

"Civil  service  laws  proceed  upon  the  basic  idea  that  for 
entry  iiUo  the  public  service  merit  and  fitness  can  be  tested 
by  examination ;  but  to  accomplish  this  end  the  preparation  of 
examination  questions  and  the  grading  of  papers  must  be 
entrusted  to  expert  examiners,  who  are  specialists  in  their 
particular  fields,  and  not  to  a  few  general  examiners  in  the 
office  of  the  commission.  The  Illinois  Civil  Service  Commis- 
sion, and  the  commissions  in  other  states,  have  secured  the 
cooperation  of  such  specialists  in  examining  applicants  for  a 
few  of  the  more  important  positions,  but  there  is  need  for  a 
further  extension  of  the  use  of  expert  examiners.  Written 
examinations  are  not  in  all  cases  sufficient  to  test  the  practi- 
cal knowledge  of  candidates  and  should  be  supplemented  by 
oral  tests,  and  by  a  paper  upon  some  special  topic  which 
will  test  the  ability  of  the  applicant  to  apply  his  knowledge, 
and  by  weighing  the  experience  of  the  several  applicants. 
After  a  person  has  once  entered  the  state  employ  it  is  possi- 
ble to  test  efficiency  in  a  more  definite  manner. 

"One  of  the  problems  of  a  civil  service  commission  is  to 
induce  competent  persons  to  compete  for  positions  in  the 
classified  service,  and  to  provide  prospective  employees  with 
information  as  to  how  they  may  enter  such  service.  Most 
of  the  laws  prescribe  that  the  rules  of  the  commission  shall 
be  published  for  distribution,  the  acts  of  New  York  and  Illi- 
nois being  most  complete  in  this  respect.  The  Illinois  statute 
provides  that  notice  of  the  places  where  copies  of  the  rules 
may  be  obtained  shall  be  given  in  all  the  newspapers  of  the 
seven  largest  cities,  and  that  copies  of  the  rules  shall  be  sent 
to  each  county  clerk  to  be  kept  for  public  reference.  In  New 
York,  the  commission  is  authorized  to  publish  and  sell,  at  a 

204 


THE  STATE  CIVIL  SERVICE 

nominal  price,  a  pamphlet  setting  forth  such  information  as 
may  be  of  assistance  in  preparing  a  candidate  for  competition 
and  illustrating  the  method  of  examination.  A  problem  of 
similar  character  is  to  provide  for  the  holding  of  examinations 
at  such  times  and  in  such  places  as  will  be  most  convenient 
for  the  largest  number  of  applicants.  Most  of  the  laws  leave 
this  matter  to  the  civil  service  board,  but  in  New  York  it  is 
provided  that  examinations  shall  be  held  at  least  once  a  year 
in  twenty-nine  designated  centers ;  and  in  Wisconsin  they 
must  be  held  simultaneously  in  each  county.  The  Illinois  and 
New  Jersey  laws  further  make  it  the  duty  of  the  commission 
to  give  notice  of  examinations  in  the  newspapers  of  general 
circulation,  and  to  provide  for  the  posting  of  such  notices 
by  the  county  clerk  in  each  county. 

"The  system  of  examinations  increases  the  competition  or 
available  material  for  office  from  the  mere  handful  of  per- 
sonal friends  and  acquaintances  of  the  appointing  authority 
to  all  those  eligible  to  take  such  examinations.  No  attempt, 
however,  has  been  made  by  the  state  governments  to  estab- 
lish civil  service  schools,  similar  to  the  academies  established 
by  the  National  Government  for  military  and  naval  training. 

"Other  special  features  in  state  civil  service  legislation 
which  need  further  mention  are:  (i)  the  provisions  of  the 
New  York  and  Ohio  laws  that  the  rules  of  the  commission 
shall  have  the  force  of  the  law;  (2)  the  provision  in  the 
Wisconsin  act  that  examinations  of  a  technical  and  special 
character  be  prepared  by  the  incumbent  of  the  office,  by  the 
head  of  the  department,  or  by  some  one  having  experience 
and  knowledge  in  similar  employment;  (3)  the  provision  of 
the  California  law  that  the  appointing  officer  may  fill  any 
position  in  the  unclassified  service  according  to  civil  service 
rules  if  he  so  desires ;  (4)  the  certification  of  only  the  highest 
name  on  the  eligible  list  in  Illinois  and  Colorado;  (5)  the 
prohibition  in  the  California  act  of  political  assessments  from 
persons  on  an  eligible  list,  as  well  as  from  those  already  ap- 

205 


AMERICAN  STATE  ADMINISTRATION 

pointed ;  (6)  the  provisions  of  the  Colorado  and  Ohio  stat- 
utes forbidding  classified  employees  to  take  active  part  in 
political  organization  and  campaigns;  and  (7)  the  provisions 
of  the  Illinois,  California  and  Ohio  laws  regarding  the  keep- 
ing of  efficiency  records  and  the  standardization  of  the 
service. 

"The  keeping  of  efficiency  records  as  required  in  Illinois, 
California  and  Ohio ;  the  duty  of  the  commission  under  the 
Illinois  and  Ohio  laws  to  report  to  the  officer  in  charge  of 
any  department  its  recommendations  for  increasing  the  effi- 
ciency of  such  department  or  for  the  removal  of  an  employee 
who  fails  to  maintain  the  proper  standard ;  and  the  power  of 
the  California  Board  to  make  such  removals,  itself,  are  the 
most  important  of  the  above-mentioned  features  from  the 
standpoint  of  increasing  the  efficiency  of  the  work  in  the  pub- 
lic service.  These  provisions,  if  made  use  of  to  their  fullest 
extent,  would  not  only  enable  the  commission  and  the  ap- 
pointing officer  to  gauge  the  output  of  an  employee  and  to 
discharge  such  as  do  not  maintain  the  proper  standard,  but 
would  also  enable  the  civil  service  board  to  determine  the 
relative  effectiveness  of  its  selective  methods,  to  study  the 
entire  public  service  as  a  unit,  and  to  give  valuable  advice  to 
administrative  authorities  in  regard  to  the  organization  and 
supervision  of  their  employees. 

"The  above  review  of  civil  service  legislation  shows  that 
the  chief  tendency  has  been  toward  the  development  of  de- 
vices to  prevent  appointments  contrary  to  law,  to  secure  the 
general  enforcement  of  the  act,  and  to  eliminate  political  in- 
fluence, and  that  little  attention  has  been  paid  to  the  working 
out  of  methods  for  securing  high-grade  experts.  The  chief 
need  of  civil  service  reform  at  the  present  time  is  the  em- 
bodiment of  such  features  as  the  keeping  of  efficiency  records, 
which  look  toward  greater  efficiency  in  the  public  service.  As 
a  recent  authority  has  expressed  it,  'the  watchdog  type  of 
civil  service  must  give  way  to  a  constructive  cooperation  with 

206 


THE  STATE  CIVIL  SERVICE 

officials  to  secure  high-grade  experts  who  are  at  once  both 
efficient  and  responsive.' 

"In  all  of  the  states  now  having  civil  service  commissions, 
the  law  provides  that  the  members  of  the  commission  shall 
be  appointed  by  the  governor.  Practically  no  restrictions  are 
placed  upon  the  governor's  choice,  through  qualifications  re- 
quired of  the  commissioners,  except  that  it  is  usually  pro- 
vided that  not  more  than  two  of  the  three  members  of  the 
commission  shall  belong  to  the  same  political  party.  This 
requirement  seems  to  have  been  adopted  in  civil  service  laws, 
as  in  other  cases,  with  a  view  to  eliminating,  so  far  as  prac- 
ticable, political  considerations  in  the  selection  of  the  commis- 
sion. In  practice,  however,  such  a  provision  has  the  oppo- 
site tendency,  since  it  carries  with  it  the  implication  that  the 
members  of  the  commission  shall  all  bear  a  party  label,  al- 
though not  more  than  two-thirds  shall  bear  the  same  label. 
The  result  of  this  provision  is  to  make  the  apparent  intention 
of  the  law  to  be  that  the  commission  shall  be  party  men, 
and  with  some  exceptions,  this  condition  is  produced  in  prac- 
tice. Bi-partisan  combinations  in  favor  of  a  lax  administra- 
tion of  the  law  are  rendered  possible.  At  the  same  time,  the 
bi-partisan  character  of  the  commission  prevents  the  concen- 
tration of  definite  responsibility  for  such  lax  administration 
upon  the  party  in  power. 

"Such  provisions  in  regard  to  party  appointments  on  civil 
service  commissions  are  still  upheld  by  those  who  recognize 
that  in  other  fields  they  do  not  serve  the  purpose  for  which 
they  were  intended.  The  general  tendency  at  the  present 
time  in  public  administration  is  towards  placing  definite  re- 
sponsibility in  the  hands  of  the  chief  executive  for  the  higher 
appointments,  and  at  the  same  time  removing  other  positions 
from  all  political  influence.  The  question  may  fairly  be  raised 
whether  the  appointment  of  civil  service  commissioners 
should  not  be  placed  definitely  in  one  or  the  other  of  these 
classes,  or  whether  such  positions  have  peculiar  characteris- 

207 


AMERICAN  STATE  ADMINISTRATION 

tics  which  justify  an  exceptional  treatment.  And  it  should 
be  recognized  that  the  present  methods  of  appointing  these 
officers  does  not  definitely  fix  responsibility  nor  does  it  en- 
sure the  elimination  of  political  influences,  but  rather  tends 
towards  a  divided  partisan  control."  ° 

One  difficulty  in  the  administration  of  the  civil  service  laws 
has  arisen  from  the  frequent  lack  of  understanding  and  coop- 
eration between  the  civil  service  commission  and  the  heads 
of  departments  in  which  members  of  the  classified  service 
are  employed.  An  attempt  has  been  made  to  overcome  this 
difficulty  in  the  method  of  constituting  the  examining  boards 
for  admission  to  the  United  States  consular  service  and  to 
secretaryships  of  embassy  or  legation.  Such  boards  are  com- 
posed of  two  elements,  first,  officials  of  the  department  in 
which  the  consuls  or  secretaries  are  to  serve,  and,  secondly, 
a  representative  of  the  United  States  Civil  Service  Commis- 
sion. The  question  may  be  raised  whether  a  plan  worked  out 
on  similar  lines  might  not  bring  about  greater  cooperation  in 
the  administration  of  the  state  civil  service. 

It  may  also  be  questioned,  however,  whether  the  uniform 
practice  of  establishing  boards  at  the  head  of  the  administra- 
tion of  state  civil  service  laws  is  the  best  arrangement.  The 
New  Jersey  Efficiency  and  Economy  Commission  has  recom- 
mended that  the  law  of  that  state  be  changed  by  replacing  the 
four  members  of  the  state  civil  service  commission  with  a 
department  of  civil  service,  composed  of  one  head  and  three 
assistants.  Such  an  innovation  may  be  opposed,  however,  on 
the  ground  that  a  board  is  better  qualified  than  a  single- 
headed   department   to   exercise   quasi-judicial   powers.^ 

"A  proposed  plan  for  the  selection  of  civil  service  commis- 
sioners on  a  non-political  basis  is  contained  in  the  draft  of  a 
model  civil  service  law  prepared  by  a  committee  of  the  Na- 
tional Assembly  of  Civil  Service  Commissioners.     This  draft 

*  The  above  quotations  are  from  Hanf ord,  op.  cit.,  pp.  920-933. 
'  Good  Government,  xxxi,  p.  4. 

208 


THE  STATE  CIVIL  SERVICE 

provides  that  civil  service  commissioners  shall  in  the  first 
place  be  appointed  by  the  goverfior,  but  any  vacancy  in  the 
commission  shall  be  filled  by  competitive  examination,  held 
by  a  board  of  special  examiners  composed  of  (a)  a  person 
who  has  been  for  at  least  two  years  a  member,  secretary  or 
chief  examiner  of  a  Federal,  state,  county  or  municipal  civil 
service  commission;  (b)  a  person  who  has  for  at  least  two 
years  been  engaged  in  selecting  trained  employees  for  posi- 
tions involving  professional  or  technical  skill ;  and  (c)  a  per- 
son who  has  been  for  at  least  two  years  a  judge  of  a  court  of 
record  within  the  state.  Under  this  plan  the  members  of  the 
commission  should  serve  not  for  a  fixed  term,  but  during  good 
behavior  or  until  retirement  at  a  given  age.  Trials  for  re- 
moval of  a  commissioner  for  cause  should  be  conducted  be- 
fore a  board  constituted  in  a  manner  similar  to  that  of  the 
appointing  board.  This  plan  is  urged  on  the  ground  that  the 
civil  service  commission  is  not  a  part  of  the  administration 
which  is  engaged  in  carrying  out  the  special  policies  of  such 
administration  and  should,  therefore,  be  so  far  as  possible 
free  from  political  control.  The  commission,  it  is  said,  should 
not  be  subject  to  the  control  of  those  against  whose  interests 
it  may  sometimes  be  its  duty  to  enforce  the  law ;  but  should 
be  an  independent  body  of  employment  experts  removed  as 
far  as  possible  from  all  political  control. 

"Two  points  of  criticism  may  be  made  against  the  proposal 
itself.  In  the  first  place,  it  is  based  on  the  same  confusion 
between  political  and  party  control  which  is  evident  in  the 
existing  laws.  While  it  may  well  be  urged  that  a  civil  service 
commission  ought,  if  possible,  to  be  a  non-partisan  body,  it 
may  be  seriously  questioned  whether  it  should  be  removed 
from  all  political  control,  in  the  better  sense  of  the  word 
political.  If  the  ultimate  control  of  appointments  to  the 
public  service  were  entirely  removed  from  popular  control, 
there  would  be  good  grounds  for  the  charge  often  made 
ctgainst  the  present  civil  service  laws,  that  this  would  lead  to 

209 


AMERICAN  STATE  ADMINISTRATION 

a  permanent  bureaucracy,  which  could  easily  acquire  control 
over  the  properly  political  organs  of  government.  In  the 
second  place,  the  plan  proposed  definitely  has  in  mind  that 
civil  service  commissioners  should  be  technically  trained  em- 
ployment experts.  This  is  a  decided  change  from  the  ideas 
of  the  early  leaders  in  the  civil  service  reform  movement. 
The  purpose  in  most,  if  not  all,  civil  service  laws  has  been 
that  the  civil  service  commissioners  should  be  public-spirited 
citizens  with  a  large  knowledge  of  affairs,  who  could  formu- 
late a  proper  system  of  rules  and  regulations  for  the  selection 
of  public  officers  and  employees ;  but  that  the  technical  work 
of  preparing  suitable  examinations  and  passing  on  the  quali- 
fication of  applicants  should  be  carried  on  by  technically 
qualified  examiners,  under  the  direction  of  the  commission. 
The  proposed  plan  points  towards  a  commission  whose  mem- 
bers shall  themselves  be  competent  examiners.  If  these  criti- 
cisms are  sound,  it  should  be  frankly  recognized  that  civil 
service  commissions  should  be  subject  to  political  control; 
and  that  the  selection  should  be  made  by  the  chief  executive. 
It  is  not  altogether  clear  whether  that  power  and  responsi- 
bility should  be  complete  and  unrestricted ;  or  whether,  in  view 
of  the  patronage  system  which  has  prevailed  in  this  country, 
it  may  be  advisable  to  continue  for  a  time  the  limitation  on 
party  appointments."  '^ 

Civil  service  regulations  constitute  a  species  of  reform 
which  has  grown  up  with  special  reference  to  the  particular 
conditions  of  American  politics.  It  is  a  movement  to  abolish 
special  privilege  in  securing  positions  in  the  public  service, 
and  hence  is  in  the  direction  of  democracy.  It  also  aims 
to  secure  efficiency  in  administration  by  requiring  special 
training  for  public  service,  and  by  creating  a  body  of  adminis- 
trative officials  free  from  the  control  of  party  politics.  In 
attempting  to  free  the  administrative  personnel  from  partisan 
control,  however,  the  civil  service  reformers  have  sometimes 

'  Hanford,  op.  cit.,  pp.  933-934- 

210 


THE  STATE  CIVIL  SERVICE 

gone  too  far  in  depriving  department  heads  of  proper  and 
adequate  administrative  control  over  their  subordinates,  upon 
whom  they  are  dependent  for  performing  the  work  of  the 
department.  In  the  present  state  of  partisan  poHtics  and 
administrative  disintegration,  strict  civil  service  regulations 
for  the  larger  part  of  the  administrative  personnel  are  doubt- 
less desirable  and  necessary.  But  it  should  be  recognized 
that,  in  so  far  as  such  regulations  violate  the  principle  of  ad- 
ministrative responsibility  of  subordinate  to  superior  officer, 
they  should  eventually  be  modified.  Such  a  modification  on 
any  considerable  scale,  however,  should  await  a  reorganiza- 
tion of  state  administration  along  lines  of  greater  concen- 
tration of  authority  and  responsibility., 

REFERENCES  AND  COLLATERAL  READING 

Croly,  H.     The  Promise  of  American  Life,  pp.  334-338. 

Faught,  a.  S.  "A  Review  of  the  Civil  Service  Laws  of  the 
United  States,"  National  Municipal  Review,  iii,  pp.  316-326. 

Good  Government,  the  official  journal  of  the  National  Civil  Service 
Reform  League,  passim. 

GooDNOw,  F.  J.  Principles  of  the  Administrative  Law  of  the 
United  States,  pp.  264-281. 

Hanford,  a.  C.  "A  Report  on  Civil  Service  Laws,"  in  Report 
of  the  Efficiency  and  Economy  Committee  of  Illinois,  pp. 
911-938. 

Harper,  H.  "Constitutionality  of  Civil  Service  Laws,"  Political 
Science  Quarterly,  xxii,  pp.  630-644. 

King,  C.  L.  "The  Appointment  and  Selection  of  Government  Ex- 
perts," National  Municipal  Reviczv,  iii,  pp.  304-315. 

National  Assembly  of  Civil  Service  Commissions,  Proceedings. 

National  Civil  Service  Reform  League,  Proceedings. 

Van  Der  Zee,  J.  "The  Merit  System  in  Iowa,"  in  Iowa  Applied 
History  Series,  ii.  No.  8. 

Whitten,  R.  H.  "Public  Administration  in  Massachusetts," 
Columbia  University  Studies  in  History,  Economics,  and  Pub- 
lic Lazv,  viii,  No.  4,  Ch.  X. 

Young,  J.  T.  The  New  American  Government  and  Its  Work, 
Ch.  XXVIII. 

211 


PART  III 

THE    FUNCTIONS    OF   THE   ADMINISTRA- 
TION 


CHAPTER  X 
TAXATION  AND  FINANCE 

The  functions  of  the  state  government  may,  from  one  point 
of  view,  be  classified  into  direct  and  indirect.  The  former  aim 
immediately  at  the  accomplishment  of  the  objects  for  which  the 
government  exists,  while  the  latter  are  intended  to  supply  the 
means  or  instrumentalities  necessary  for  the  performance 
of  the  direct  functions.  Among  the  former  may  be  classed 
the  promotion  of  the  public  health  and  education ;  among  the 
latter,  the  selection  of  officers  and  the  collection  and  dis- 
bursement of  funds  for  public  purposes.  Generally  speak- 
ing, everything  that  the  state  government  does  costs  money 
and,  consequently,  the  activities  of  the  government  in  con- 
nection with  the  raising  and  expenditure  of  money  are  neces- 
sary prerequisites  to  the  performance  of  all  other  functions. 
The  importance  of  the  financial  operations  of  the  state  corre- 
sponds roughly  to  the  aggregate  scope  and  extent  of  its 
functions  and  activities.  The  increasing  paternalism  of  the 
state,  the  ever-widening  scope  of  state  interference,  the  need 
for  better  highways,  better  educational  facilities  and  other 
modern  improvements  require  an  ever-increasing  outlay  on 
the  part  of  the  state,  which  must,  sooner  or  later,  be  met 
out  of  the  proceeds  of  taxes.  Ever  more  acute  and  pressing, 
therefore,  becomes  the  problem  of  securing  a  productive  and 
equitable  system  of  taxation  and  of  adopting  economical  and 
efficient  methods  in  the  collection  and  disbursement  of  public 
funds. 

The  financial  operations  of  the  state  government  may,  for 
purposes   of   convenience,   be   considered   under   three  main 

215 


AMERICAN  STATE  ADMINISTRATION 

heads :  first,  income ;  secondly,  expenditure ;  and,  thirdly,  the 
correlation  of  income  and  expenditure.  The  income  of  the 
state  is  derived  not  only  from  taxes,  but  also  from  fines  and 
from  fees  and  charges  imposed  upon  particular  individuals 
for  special  services  or  reasons.  Some  states  also  enjoy  an 
income  from  the  sale  of  public  lands  granted  by  the  United 
States  Government  for  the  use  of  public  schools  and  other 
purposes.  Minnesota  and  Texas,  for  example,  derive  a  con- 
siderable revenue  from  this  source.  Minor  sources  of  state 
revenue  include  interest,  rent,  grants,  gifts,  forfeitures  and 
escheats,  and  earnings  of  business  enterprises.  From  the 
standpoint  of  bookkeeping,  states  also  derive  an  income  from 
floating  loans  and  selling  bonds. 

The  issuance  of  bonds  is  a  device  whereby  a  state  is  en- 
abled to  spread  over  a  series  of  years  payments,  the  total 
amount  of  which  would  otherwise  have  to  be  met  out  of  cur- 
rent taxes.  From  the  standpoint  of  financial  policy,  resort  to 
this  device  is  justifiable  in  the  case  of  large  expenditures  for 
permanent  improvements  and  extraordinary  or  unusual  ob- 
jects, but  the  date  of  the  maturity  of  the  bonds  should,  of 
course,  not  be  placed  beyond  the  life  of  the  benefit  to  be 
secured  from  the  contemplated  expenditure.  The  exercise 
of  the  borrowing  power  by  the  state  governments  may  be 
essential  to  the  carrying  out  of  an  important  public  work, 
such  as  the  opening  up  of  waterways  for  navigation  and  the 
adoption  of  a  far-sighted  policy  of  conservation  of  natural 
resources.  In  the  hands  of  the  state  governments,  however, 
the  lack  of  adequate  safeguards  against  the  unrestricted  exer- 
cise of  this  power  may  lead  to  the  piling  up  of  huge  and 
largely  unnecessary  debts  for  posterity  to  pay.  The  experi- 
ence of  the  states  during  the  internal  improvement  period 
before  the  Civil  War  led  to  the  adoption  of  various  constitu- 
tional restrictions  designed  to  discourage  excessive  exercise  of 
the  debt-incurring  power  of  the  legislature,  such  as  the  re- 
quirement of  an  annual  tax  sufficient  to  pay  the  interest  and 

216 


TAXATION  AND  FINANCE 

discharge  the  principal  of  the  debt  upon  its  maturity/  or 
that  no  debt  in  excess  of  a  certain  minimum  shall  be  in- 
curred, unless  for  specified  purposes  or  unless  authorized  by 
popular  vote.^  In  practice,  however,  the  legal  limitation  of 
a  popular  referendum  has  not  operated  as  a  very  decided 
check  upon  unwise  and  unnecessary  borrowing.  Neverthe- 
less, some  states  now  have  scarcely  any  indebtedness,  either 
bonded  or  floating;  while,  in  all  the  states,  the  total  outstand- 
ing indebtedness,  as  compared  with  the  total  assessed  valua- 
tion of  property  within  the  state,  is  small.^ 

By  far  the  larger  part  of  the  revenues  of  the  state  govern- 
ments is  derived  from  taxes,  and  with  this  phase  of  the  sub- 
ject, therefore,  we  are  more  particularly  concerned.  In  few 
matters  have  the  American  people  displayed  greater  conserva- 
tism than  in  connection  with  state  and  local  taxation.  The 
roots  of  the  tax  systems  of  the  older  states  along  the  Atlantic 
coast  go  back  into  the  colonial  era,  and  the  newer  states  have 
copied  the  characteristic  features  of  the  old.  Both  with  re- 
spect to  the  sources  of  income  and  the  administrative  methods 
of  assessment  and  collection,  taxation  in  the  colonial  period 
was  meager  and  rudimentary.  In  some  instances  the  general 
property  tax  early  became  the  backbone  of  the  system.  More 
frequently,  however,  direct  taxes  were  levied  upon  certain 
specified  articles  of  property,  to  which  were  added  a  poll 
tax  and,  perhaps,  a  license  or  business  tax,  and  excise  taxes. 
Custom  duties  were  also  collected  by  the  colonies  until  the 
establishment  of  the  Federal  Government.     In  practically  all 

'The  proposed  New  York  Constitution  of  1915  provided  that  this 
sinking  fund  plan  should  be  displaced  by  the  simpler  and  more  busi- 
nesslike serial  bond  plan,  under  which  the  bonds  would  be  paid  in 
equal  annual  installments. 

*  Cf.  H.  Secrist,  "An  Economic  Analysis  of  the  Constitutional  Re- 
strictions upon  Public  Indebtedness  in  the  United  States,"  Bulletin 
of  the  University  of  IVisconsin,  Economics  and  Political  Science  Series, 
Vol.  viii,  No.  I,  Part  i ;  H.  C.  Adams,  Public  Debts,  Part  III,  Ch.  IV. 

'In  1913  the  total  outstanding  debt  of  all  the  states  was  $423,000,000, 
more  than  half  of  which  was  owed  by  Massachusetts  and  New  York. 

217 


AMERICAN  STATE  ADMINISTRATION 

cases,  the  property  levied  upon  was  visible  and  tangible.  By 
1796,  Wolcott  reports  that  four  states,  including  New  York, 
have  the  general  property  tax,  while  the  others  tax  certain 
specific  objects.* 

Since  the  financial  needs  of  the  colonial  governments  were 
small,  the  machinery  of  levying  and  collecting  taxes  for  colo- 
nial purposes  was  naturally  crude.  The  principal  objects  of 
public  expenditure  at  that  time,  such  as  the  building  of  high- 
ways, bridges,  jails,  and  poorhouses,  were  considered  to  be 
not  of  general  colonial  interest,  but  of  merely  local  concern. 
Since  local  machinery  for  levying  and  collecting  taxes  for 
these  purposes  already  existed,  the  colonial  legislature  fre- 
quently utilized  such  machinery  for  the  collection  of  the  co- 
lonial or  provincial  tax  also.  Such  local  machinery  was 
utilized  either  directly  or  indirectly  through  the  medium  of 
the  local  unit  of  government.  The  latter  method  consisted 
in  the  apportionment  by  legislative  enactment  of  definite 
lump  sums  among  the  various  towns.  This  method  was  fol- 
lowed in  New  Jersey  as  early  as  1668  and  in  Massachusetts 
after  1692.^  The  difficulties  and  defects  of  this  method  were 
that  it  placed  no  direct  pressure  upon  individual  taxpayers, 
that  it  provided  no  equitable  basis  for  the  apportionment,  and 
that  no  adequate  means  were  provided  for  compelling  the 
towns  to  comply  with  the  requirements  of  the  law. 

More  frequently,  the  local  machinery  was  directly  utilized 
by  the  central  government  through  provisions  requiring  local 
officials  to  collect  the  tax  levied  for  colonial  purposes  and  to 
pay  the  proceeds  either  directly  or  indirectly  into  the  colonial 
treasury.  In  the  New  England  colonies,  the  officers  desig- 
nated to  perform  this  function  were  usually  those  town  offi- 

*  Wolcott's  "Report  on  State  Finances,"  in  American  State  Papers, 
vii,  p.,  437. 

*John  Whitehead,  Judicial  and  Civil  History  of  New  Jersey,  i,  pp. 
119,  124;  Learning  and  Spicer,  Grants  and  Concessions,  p.  81;  R.  H. 
Whitten,  Public  Administration  in  Massachusetts,  Columbia  University 
Studies,  viii.  No.  4,  Ch.  7. 

218 


TAXATION  AND  FINANCE 

cers  having  special  financial  duties,  such  as  town  assessors 
and  treasurers,  while,  in  the  Middle  and  Southern  colonies, 
the  legislature  generally  made  use  of  officers  having  normally- 
duties  of  an  essentially  different  character,  such  as  constables, 
marshals,  sheriffs,  and  justices  of  the  peace.  In  either  case, 
such  officials  were  usually  either  elected  by  the  voters  of  the 
localities,  or  appointed  by  the  governor,  and  the  reliance  of 
the  legislature  was  thus  placed  upon  officers  who  were,  in 
the  main,  not  responsible  to  itself.  The  control  which  the 
legislature  exercised  over  them  was  so  feeble  that  the  colo- 
nies sometimes  found  themselves  in  financial  difficulties 
through  the  neglect  of  such  local  officers  in  performing  the 
duties  laid  upon  them  by  law.^ 

Such  difficulties  pointed  to  the  need  for  adopting  measures 
to  curtail,  to  some  extent  at  least,  the  complete  autonomy  of 
the  local  units  of  government  in  financial  affairs.  Such  meas- 
ures, as  actually  adopted,  consisted  either  in  the  establish- 
ment of  central  supervision  over  the  local  machinery  of  as- 
sessment and  collection,  or  in  the  direct  creation  by  the  Gen- 
eral Assembly  of  instrumentalities  to  be  used  for  this  pur- 
pose. Thus,  the  New  York  tax  act  of  1683,  while  utilizing 
the  local  machinery,  also  provided  for  centrally-appointed 
commissioners  in  each  county,  who  were  to  direct  and  super- 
vise the  local  officers.'^  Five  years  later,  county  commission- 
ers with  similar  functions  were  appointed  by  the  Assembly 
in  East  Jersey.^  Thus,  in  these  colonies,  a  group  of  centrally- 
appointed  officers  was  superimposed  upon  the  local  machinery 
of  tax  administration.  In  some  places,  this  tendency  towards 
centralization  was,  at  this  early  period,  carried  so  far  as 
almost  entirely  to  dispense  with  the  local  machinery  in  assess- 

"  Cf.  preambles  to  New  Jersey  Acts  of  1677  and  1701,  Learning  and 
Spicer,  op.  cit.,  pp.  125,  581. 

'  Colonial  Laws  of  New  York,  1683,  Chap.  14,  cited  by  Fairlie,  Cen- 
tralization of  Administration  in  New  York  State,  Columbia  University 
Studies,  ix,  p.  562. 

*  New  Jersey  Laws,  Act  of  1688,  Learning  and  Spicer,  op.  cit.,  p.  306. 

219 


AMERICAN  STATE  ADMINISTRATION 

ing  and  collecting  the  provincial  tax.  Thus,  by  act  of  1701, 
the  Assembly  in  West  Jersey  named  and  appointed  the 
assessors  and  collectors  of  taxes  in  each  township  in  the 
province.^  In  case  any  of  the  assessors  or  collectors  failed 
to  perform  their  duties  under  the  act  within  the  allotted  time, 
the  governor  and  council  were  empowered  to  remove  them 
and  appoint  others  in  their  places.  This  drastic  measure,  it 
will  be  seen,  combined  both  legislative  and  administrative 
centralization  to  a  considerable  degree.  Nevertheless,  even 
here  the  machinery  of  local  government  was  not  entirely  dis- 
pensed with,  for  the  assistance  of  the  town  constable  was  to 
be  utilized  in  proceeding  against  delinquent  taxpayers." 

This  early  period  of  centralization  was  followed  by  a  reac- 
tion towards  localism.  The  locally  elected  town  and  county 
officers  having  fiscal  functions  administered  the  local  poor 
rate  and  other  local  taxes,  and,  so  long  as  the  amount  of  the 
provincial  tax  was  small,  it  was  deemed  that  no  great  harm 
would  come  through  the  utilization  of  such  local  officers  in 
collecting  the  provincial  tax.  Hence,  in  New  York,  the  ad- 
ministration of  the  provincial  levy  of  1728  was  directed  by 
the  elected  town  supervisors.^^  In  New  Jersey,  the  assess- 
ment and  collection  of  the  provincial  tax  were  in  1716  in- 
trusted to  local  officers  elected  annually  by  the  voters  of  each 
town;  and  in  1730,  central  control  over  the  administration 
of  provincial  taxes  was  still  further  weakened  through  the 
provision  that  county  collectors  were  no  longer  to  be  ap- 
pointed by  the  assembly,  but  were  to  be  elected  by  the  voters 
of  each  county.^^     ji^^g^  ^^  j^^^^  ^^^  administration  of  the 

^New  Jersey  Laws  of  1701,  Learning  and  Spicer,  op.  cit.,  p.  581. 

"At  this  early  period,  the  collection  of  taxes  was  sometimes  farmed 
out  to  the  highest  bidder,  as  in  the  case  of  the  excise  taxes  of  New 
York  of  1653  and  of  New  Jersey  in  1716.    Fairlie,  op.  cit.,  p.  558. 

"Colonial  Laws  of  New  York,  1728,  Ch.  530,  cited  by  Fairlie,  op. 
cit.,  p.  564. 

"Acts  of  New  Jersey  General  Assembly,  1716,  Nevill's  edition;  New 
Jersey  Laws  of  1730,  Bradford's  print. 

220 


TAXATION  AND  FINANCE 

provincial  direct  tax  in  New  York  and  New  Jersey  had  be- 
come almost  entirely  decentralized. 

The  development  of  tax  administration  in  the  various  colo- 
nies differed  in  details,  and  here  and  there  attempts  were 
made  to  establish  certain  restraints  upon  the  free  action  of 
local  officers,  or  to  compel  them  to  perform  their  duties  more 
efficiently.  Nevertheless,  it  may  be  said  that,  by  the  time  the 
colonies  were  transformed  into  states,  the  tendency  towards 
almost  complete  administrative  decentralization  had  become 
very  widespread.  After  the  beginning  of  the  nineteenth  cen- 
tury, the  direct  property  tax,  whether  specific  or  general,  was 
primarily  a  local  tax,  assessed  and  collected  by  local  officials, 
with  little  or  no  state  supervision.  The  state  tax  was  levied 
upon  the  same  sources  as  the  local  tax  and  the  state  rate  was 
thus  added  to  the  local  rate  and  collected  by  one  and  the 
same  operation.  This  decentralized  system,  thus  early  devel- 
oped, has,  with  some  modifications,  remained  the  central  fea- 
ture of  state  tax  administration  even  down  to  the  present 
day. 

As  already  noted,  a  few  states,  including  New  York,  levied, 
almost  from  the  beginning,  a  general  property  tax,  but,  in 
most  of  the  states,  specific  objects  were  singled  out  and  as- 
sessed for  taxes.  At  the  beginning  of  the  nineteenth  century, 
property  was  not  yet  highly  differentiated,  and  consisted  prin- 
cipally of  land  and  improvements,  and  tangible  personalty, 
such  as  live  stock,  slaves,  and  household  furniture.  Under 
these  conditions,  taxes  could  be  levied  upon  these  specific 
classes  of  objects  with  a  reasonable  assurance  of  covering 
the  greater  portion  of  the  taxable  ability  of  the  people.  Even 
at  this  early  period,  however,  the  mass  of  property  was 
becoming  more  highly  differentiated.  The  gradual  develop- 
ment of  new  forms  of  wealth  raised  a  popular  demand  that 
they  should  not  escape  their  share  of  the  public  burden 
through  failure  of  the  law  to  designate  them  as  objects  of 
taxation.     Hence,   in   states   having   specific   property   taxes, 

221 


AMERICAN  STATE  ADMINISTRATION 

the  legislatures  were  continually  under  the  necessity  of  en- 
larging the  list  of  taxable  objects,  thus  gradually  approaching, 
if  not  quite  reaching,  a  general  property  tax.  Finally,  how- 
ever, in  order  to  avoid  the  necessity  of  enacting  a  long  and 
cumbrous  list  of  taxable  articles  and  the  danger  of  omitting 
some  that  ought  to  be  taxed,  the  specific  property  tax  was 
transformed  into  the  general  property  tax.  This  transforma- 
tion, which  was,  in  some  states,  more  of  a  change  in  the  form 
of  the  law  than  in  its  practical  effects,  occurred  generally 
about  the  middle  of  the  nineteenth  century.  Thus,  the  change 
took  place  in  Illinois  in  1839,  in  Ohio  in  1846,  and,  in  185 1, 
New  Jersey  took  the  same  step,^^  In  many  states  this  change 
was  subsequently  embodied  in  the  constitutions.  Probably 
the  most  explicit  statement  of  the  principle  of  the  general 
property  tax  is  found  in  the  Ohio  Constitution  of  185 1, 
which  provides  that  "laws  shall  be  passed  taxing,  by  a  uni- 
form rule,  all  moneys,  credits,  investments  in  bonds,  stocks, 
joint  stock  companies,  or  otherwise;  and  also  all  real  and  per- 
sonal property  according  to  its  true  value  in  money."  ^*  In 
spite  of  all  efforts  at  amendment,  this  provision  still  remains 
in  the  constitution  of  that  state,  and  about  half  of  the  states 
of  the  Union  have  similar  constitutional  restrictions  requiring 
the  continuance  of  the  general  property  tax.  Furthermore, 
about  three-fourths  of  all  state  and  local  revenues  are  de- 
rived from  this  tax,  so  that  it  may  be  justly  described  as  the 
distinctive  and  characteristic  American   form  of  taxation. 

The  purpose  of  the  general  property  tax  was  to  spread  the 
public  burden  as  evenly  as  possible  over  all  persons  in  the 
community  in  accordance  with  their  respective  abilities  to 
contribute,  as  measured  by  the  value  of  the  property  which 

"Ohio  Laws,  xliv,  p.  85;  New  Jersey  Laws,  Act  of  March  14,  185 1 ; 
Illinois  Constitution  of   1818,  Art.  VIII,   Sect.  20. 

"  Provision  was  made  for  the  exemption  of  certain  kinds  of  prop- 
erty, but  this  was  not  considered  as  a  departure  from  the  principle  of 
the  general  property  tax. 

222 


TAXATION  AND  FINANCE 

they    possessed.     This    purpose,    however,    could    be    fully 
achieved  only  in  isolated,  rural  communities,  in  which  only 
primitive  forms  of  property  existed.     These  conditions  were 
to  some  extent  met  in  many  of  the  states  during  the  first  half 
of  the  nineteenth  century.     The  principal  forms  of  property 
were  land  and  chattels,  which  could  not  easily  be  concealed 
from    the    assessor;    transportation    and    transmission    lines 
owned  by  private  corporations  had  not  yet  developed  to  any 
considerable   extent;   and   the   financial   needs   of    the   states 
were  comparatively  small.     Under  these  conditions,  the  uni- 
form ad  valorem    system    worked    tolerably    well.     But    the 
great  difficulty  in  connection  with  the  general  property  tax 
is  that,  either  through  its  crystallization  in  constitutions,  or 
through  inertia  on  the  part  of  legislatures,  or  general  popular 
ignorance  of  economic  principles,  it  has  been  retained  long 
after  it  had  become  antiquated  and  unsuited  to  modern  com- 
plex conditions.     Although  this  tax  was  never  an  ideal  tax, 
it   nevertheless   worked    fairly   well   during   the   agricultural 
stage   of   our   industrial   development.      But   since   we   have 
reached  the  commercial  stage  in  which  corporate  and  intangi- 
ble personal  property  are  among  the  most  valuable  and  ex- 
tensive forms  of  wealth,  the  general  property  tax  breaks  down 
both  in  theory  and  in  practice.     It  breaks  down  in  theory 
because  not  property  but  net  income  is  probably  the  better 
test  of  tax-paying  ability.     Moreover,  taxes  on  some  forms 
of  property  are  shifted,  while  on  others  they  are  amortized. 
In  its  practical  working  and  actual  administration,  the  gen- 
eral property  tax  is  even  more  obnoxious  than  its  theoretical 
defects  would  indicate. 

As  already  noted,  the  general  property  tax  was  in  origin 
primarily  a  local  tax  and  was  locally  administered.  The 
actual  administration  still  continues  to  remain  in  large  meas- 
ure in  the  hands  of  local  authorities.  The  process  of  admin- 
istering the  general  property  tax  consists  in  the  assessment  or 
valuation  of  property  which  is  taxable  within  the  given  juris- 

223 


AMERICAN  STATE  ADMINISTRATION 

diction,  the  calculation  of  the  tax  rate  upon  the  basis  of  the 
total  valuation  as  compared  with  the  amount  of  proceeds  de- 
sired from  this  source,  the  computation  of  the  proportionate 
share  of  the  total  taxes  to  be  paid  by  each  taxpayer,  the  levy- 
ing of  this  amount  against  him,  and  the  collection  of  the 
tax.  The  determination  of  the  state  tax  rate  is  made  either 
by  legislative  enactment  or  by  a  state  board  or  official.  The 
assessment  of  the  property  and  the  collection  of  the  tax  are 
in  the  hands  of  local  officials.  When  collected,  the  respective 
shares  of  the  proceeds  due  the  county  and  state  are  transmit- 
ted to  the  county  and  state  treasurers  by  such  local  officials. 
The  expense  of  the  collection  in  some  localities  eats  up  a 
considerable  percentage  of  the  proceeds.  More  efficient  and 
economical  administration  in  the  collection  of  taxes  might  be 
secured  by  consolidating  the  local  units  of  collection  into  the 
county  and  having  all  local  and  state  general  property  taxes 
collected  by  the  county  treasurer  or  his  deputies. 

The  initial  step,  as  well  as  the  most  important  and  funda- 
mental in  the  administration  of  the  general  ad  valorem  sys- 
tem, is  the  assessment  or  valuation  of  the  various  articles  or 
pieces  of  property.  For  the  purpose  of  making  this  assess- 
ment, the  local  subdivisions  of  the  state,  such  as  counties, 
cities  and  towns,  are  adopted  as  taxing  districts.  In  so  far 
as  the  state  depends  on  the  property  tax  for  its  revenue,  it  is 
directly  concerned  in  the  accuracy  and  efficiency  with  which 
the  original  assessment  is  made.  Nevertheless,  in  accordance 
with  ideas  of  local  home  rule,  which  have  their  roots  far  in 
the  past,  the  assessment  is  generally  made  by  appointed,  or, 
more  usually,  elected  officers  of  the  local  unit  of  government. 
No  qualifications,  calculated  to  secure  competence  in  the  office 
of  local  assessor,  are  required,  and  any  voter  is  eligible  for 
election  to  this  important  position.  The  taxing  districts  are 
usually  too  small  to  require  the  full  time  of  the  assessor  for 
more  than  a  small  part  of  the  year,  and  the  salary  or  per 
diem  is  small.     The  term,  moreover,  is  usually  short,  and,  in 

224 


TAXATION  AND  FINANCE 

some  places,  as  in  Kentucky,  the  assessor  is  made  ineligible 
to  succeed  himself.  Hence,  the  office  holds  out  no  great  in- 
ducements to  capable  men ;  it  offers  no  career  or  rewards  for 
faithful  performance  of  duty,  and  in  many  localities  is  re- 
garded as  a  temporary  sinecure  for  persons  having  local  po- 
litical influence.  Where  the  assessor  is  ineligible  to  succeed 
himself,  he  does  not  remain  in  office  long  enough  to  become 
expert  in  the  performance  of  his  duties.  On  the  other  hand, 
where  he  is  legally  reeligible,  the  more  expert  he  becomes  and 
the  more  efficiently  he  discovers  and  assesses  the  property  in 
his  district,  the  more  obnoxious  he  is  apt  to  make  himself  to 
influential  local  residents,  and  the  less  apt  is  he  to  be  reelected. 
Under  these  circumstances  he  sometimes  becomes  the  puppet 
of  political  and  personal  influences,  and  his  continuance  in 
office  depends  upon  his  easygoing  indifference  to  the  rigid 
and  equal  enforcement  of  the  law.  In  short,  the  method  of 
local  election  by  the  voters  whose  property  it  is  his  business 
to  assess  tends  to  secure  incompetent  assessors,  and  if,  by 
chance,  an  efficient  man  should  be  elected,  his  very  efficiency 
is  apt  to  cause  his  involuntary  retirement  from  the  office  at 
the  earliest  opportunity. 

The  actual  valuation  of  different  kinds  of  property  is  a 
function  requiring,  for  its  proper  performance,  a  considerable 
degree  of  technical  knowledge.  Yet  the  local  assessor  is 
called  upon  to  perform  it  without  adequate  means  at  his  dis- 
posal, other  than  his  own  judgment  and  the  assessment  roll 
of  his  predecessor.  Frequently,  the  previous  valuations  are 
followed  with  little  change,  and  thus  inequalities  are  perpetu- 
ated. In  colonial  times,  it  was  customary  to  provide  by  law 
that  different  classes  of  property  should  be  assessed  at  cer- 
tain arbitrary  valuations,  without  taking  note  of  differences 
in  the  actual  value  of  different  articles  in  the  same  class.  At 
present,  however,  most  of  the  states  having  the  general  prop- 
erty tax  require  by  law  that  all  property,  both  real  and  per- 
sonal, shall  be  assessed  at  its  full  and  true  value  in  money, 

225 


AMERICAN  STATE  ADMINISTRATION 

which  is  usually  construed  to  mean  the  price  which  it  would 
bring  at  a  voluntary  sale  in  open  market.     But  the  hiatus  be- 
tween the  law  and  its  administration  is  great.    The  assessors 
of  a  given  county  sometimes  agree  to  evade  the  law  by  assess- 
ing all  taxable  objects  of  a  given  kind,  such  as  pianos,  sewing 
machines,  or  acres  of  land,  at  a  certain  fixed  and  arbitrary 
figure.     Since  the  percentage  of  this  figure  to  true  value  will 
be  the  same  in  scarcely  any  two  cases,  the  whole  process  is 
honeycombed  with  inequalities.     In  actual  practice,  the  ideal 
of   full  valuation  is   seldom   realized.     Realty  approaches   it 
more  nearly  than  other  forms  of  property,  but  personal  prop- 
erty  is   notoriously  undervalued,   or  escapes   entirely.     Fre- 
quently,  personal  property   taxes   are  assessed   upon   hardly 
anyone  in  the  community  except  those  whose  names  are  al- 
ready on  the  assessment  rolls  as  liable  to  taxes  on  real  estate. 
It  is  physically  impossible  for  the  assessor  to  assess  all  per- 
sonal property  from  actual  view,  and  it  is  customary  in  many 
places  to  require  the  taxpayer  himself  to  make  a  sworn  state- 
ment of  his  taxable  property,  the  different  items  being  listed 
under  various  subheads.     In  some  states  he  may  be  required 
not  only  to  list  all  his  property  under  oath,  but  also  to  swear 
to  the  value  of  each  item.     This  method  practically  amounts 
to  self-assessment,   for,  though  the  assessor  may  revise  the 
statement,  he  usually  makes  little  effort  to  verify  its  suffi- 
ciency.    It  is  obvious  that  such  a  plan  is  doomed  to  failure. 
"If  Jove  laughs  at  lovers'  vows,  he  probably  guffaws  at  tax- 
payers' oaths.     Even  the  Psalmist's  hasty  allegation  of  uni- 
versal mendacity  needs  little  qualification  in  this  province  of 
finance.     Where  the  taxpayer's  conscience  is  tender,  he  finds 
that  virtue  is  perforce  its  own  reward."  ^^     Instead  of  being 
equal  in  proportion  to  ability,  the  tax  becomes  progressive  in 
proportion  to  honesty.     It  thus  places  a  premium  on  dishon- 
esty, and  has  been  justly  described  as  a  "school  of  perjury." 
The  general  property  tax  is  thus  seen  to  be,  in  actual  oper- 

^^  W.  M.  Daniels,  Elements  of  Public  Finance,  p.  123. 

226 


TAXATION  AND  FINANCE 

ation,  unequal  not  only  as  between  different  individuals,  but 
also  as  between  different  classes  of  property.  Under  this  tax 
personal  property  everywhere  fails  to  bear  its  proportionate 
share  of  the  burden.  This  is  true  even  with  respect  to  tan- 
gible personalty.  Thus,  according  to  the  assessment  figures, 
the  full  cash  value  of  all  the  diamonds  and  jewelry  in  Chicago 
in  191 1  was  only  about  a  half-million  dollars.  In  the  same 
city,  there  was  not  a  single  melodeon  or  organ,  and  only  one 
person  in  every  188  inhabitants  owned  a  watch  or  clock.^^ 
In  the  case  of  intangible  personal  property,  such  as  stocks, 
bonds,  mortgages  and  other  securities  or  certificates  of  in- 
debtedness, whose  existence  may  be  so  easily  concealed  from 
the  assessor,  the  number  which  escaped  or  the  extent  of  un- 
derv'aluation  was,  of  course,  much  greater  than  in  the  case 
of  tangible  personalty.  The  figures  of  the  United  States 
Census  Bureau  show  that,  in  191 2,  the  assessed  valuation  of 
real  property  and  improvements  subject  to  ad  valorem  taxa- 
tion was,  for  the  entire  country,  about  fifty-two  billions  of 
dollars,  while  that  of  personal  property  was  only  about  sev- 
enteen billions,  though  the  true  value  of  personal  property 
was  doubtless  considerably  greater  than  that  of  real  estate. 
Undervaluation,  whether  of  real  or  personal  property,  is 
due  in  part  to  the  ignorance  of  the  average  assessor  as  to  the 
true  value  of  certain  kinds  of  property.  The  small  dwelling 
and  scanty  household  furniture  of  the  laboring  man  he  is 
able  to  assess  with  tolerable  accuracy,  but  the  true  values  of 
the  palatial  residence  of  the  millionaire  and  of  large  hotels 
and  office-buildings  together  with  their  contents  are  beyond 
his  ken,  and  his  estimates  in  the  latter  cases  are  apt  to  be 
very  much  below  the  full  value.  Thus,  the  rich  frequently 
escape  with  comparatively  light  taxes,  while  the  poor  man 
is  heavily  burdened.  In  the  case  of  corporate  property,  such 
as  the  plant  of  a  manufacturing  concern,  the  assessor's  esti- 

"  R.  M.  Haig,  History  of  the  General  Property  Tax  in  Illinois,  Uni- 
versity of  Illinois  Studies  in  the  Social  Sciences,  iii,  pp.  160-161. 

227 


AMERICAN  STATE  ADMINISTRATION 

mate  is  apt  to  be  still  further  from  the  true  figure.  Even 
experts  may  disagree  as  to  the  value  of  such  properties,  hence 
the  assessor's  failure  is  not  altogether  his  ow^n  fault,  but  is 
due  to  the  fact  that  he  has  been  set  to  perform  a  task  w^hich, 
with  the  means  at  his  command,  is  practically  impossible. 
This  is  particularly  true  in  the  case  of  the  properties  of  trans- 
portation and  transmission  companies,  a  small  part  of  whose 
lines  may  run  through  the  assessor's  taxing  district.  Any  ef- 
forts he  may  make  to  assess  such  property  at  its  true  value 
are  bound  to  fail,  for  he  acts  absolutely  without  guide  or 
compass. 

Undervaluation,  however,  cannot  be  wholly  attributed  to 
ignorance  on  the  part  of  the  local  assessor,  but  to  some  extent 
is  undoubtedly  due  to  conscious  design.  In  some  cases  the 
assessor  feels  that  some  kinds  of  property  and  the  property 
of  some  individuals  are  escaping  their  just  share  of  the  tax 
burden  and  therefore  consciously  undervalues  the  property  of 
other  individuals  and  other  kinds  of  property  in  order  to 
effect  a  rough  sort  of  equaHzation.  He  doubtless  remembers 
also  that  the  taxpayer  is  less  apt  to  protest  against  his  assess- 
ment if  it  is  obviously  under  true  value,  even  though  the 
property  of  other  taxpayers  is  undervalued  to  an  even  greater 
extent.  "Almost  every  general  tax  has  had  to  be  adminis- 
tered with  the  drug  of  indirection  or  undervaluation.  To 
make  the  taxpayer  swallow  the  dose,  we  have  adopted  the 
policy  of  soothing  and  befuddling  him  with  a  little  pretended 
graft  or  a  pseudo  rake-ofif."  "  Some  states,  such  as  Iowa, 
Illinois,  and  Nebraska,  have  adopted  what  has  been  called  the 
"ostrichlike  policy"  of  legaHzing  fractional  assessment.  It 
might  be  supposed  that  little  importance  is  to  be  attached  to 
undervaluation  in  itself,  since  its  effects  may  be  counter- 
acted by  the  simple  device  of  shifting  the  tax  rate.  But  the 
evil  of  undervaluation  is  that  it  tends  to  intensify,  at  the  same 


"  Thomas  S.  Adams,  in  Proceedings  of  the  Washington  State  Tax 
Conference,  1914.  P-  207. 

228 


TAXATION  AND  FINANCE 

time  that  it  disguises,  the  extent  of  the  inequalities  between 
individuals  within  the  same  taxing  district. 

The  administration  of  the  general  property  tax  by  local 
assessors  produces  inequalities  not  only  between  individuals 
within  the  same  taxing  district,  but  also  between  different 
taxing  districts.  Inasmuch  as  the  state  tax  is  laid  upon  each 
county  and  the  county  tax  upon  each  minor  taxing  district  in 
proportion  to  the  total  assessed  valuation  of  property  within 
such  county  or  district,  a  positive  incentive  is  held  out  to  the 
local  assessor  to  keep  the  valuation  as  low  as  possible,  in  order 
that  his  district  may  bear  as  small  a  share  as  possible  of  the 
state  and  county  taxes.  Each  local  assessor  vies  with  the 
others  in  the  race  towards  undervaluation.  The  result  is  that 
in  all  of  the  taxing  districts,  property  is  undervalued,  but 
the  extent  of  the  undervaluation  is  not  apt  to  be  exactly  the 
same  in  any  two  districts.  In  some  it  may  be  thirty  per- 
centum  of  true  value,  in  others  fifty  and  in  still  others  seventy. 
The  assessor  who  hews  the  closest  to  the  law  requiring  true 
value  in  assessments  finds  that  he  has  not  only  made  himself 
unpopular  with  the  people  of  his  district  upon  whom  he  must 
depend  for  reelection,  but  that  his  efforts  have  resulted  in 
saddling  his  district  with  a  larger  share  of  the  state  and 
county  taxes  than  other  and,  perhaps,  wealthier  districts  in 
which  the  undervaluation  is  greater.  In  this  case,  therefore, 
undervaluation  produces  positive  injustice  as  between  groups 
of  taxpayers  in  different  taxing  districts.  It  must  not  be 
supposed,  however,  that  the  incentive  to  undervaluation  which 
results  from  taking  the  local  assessments  as  the  basis  of  state 
and  county  taxes  is  the  sole  cause  of  inequalities  between 
different  taxing  districts.  Quite  aside  from  this  considera- 
tion, inequalities  of  this  kind  would  almost  inevitably  arise 
where  each  local  assessor  proceeds  entirely  on  his  own  re- 
sponsibility, without  effective  cooperation  with  other  assessors 
and  without  adequate  central  guidance  or  control. 

The  operation  of  the  general  property  tax,  therefore,  re- 

229 


AMERICAN  STATE  ADMINISTRATION 

suits  in  inequalities  between  the  owners  of  the  same  kind  of 
property,  between  the  owners  of  real  and  personal  property, 
and  between  different  taxing  districts.^*  It  was  originally 
adopted  as  a  state  tax  as  a  matter  of  convenience  because  it 
already  existed  as  a  local  tax,  and,  in  an  age  when  property 
was  tangible  and  localized,  it  was  deemed  to  be,  at  least 
theoretically,  proportionate  to  taxpaying  ability  and  in  accord- 
ance with  the  democratic  principle  of  equality  of  sacrifice. 
When  attention  is  directed,  however,  to  its  actual  adminis- 
tration under  present-day  conditions,  it  is  found  to  be  in- 
equitable because  it  does  not  rest  on  individuals  or  corpora- 
tions in  proportion  to  taxpaying  ability,  but  rather  in  inverse 
proportion  to  such  ability.  If,  as  its  name  implies,  it  were 
in  reahty  a  general  property  tax,  it  would  still  not  be  an 
ideal  tax,  but  many  of  the  objections  now  made  to  it  would 
be  invalidated.  Inasmuch,  however,  as  certain  kinds  of  prop- 
erty, such  as  intangible  personalty,  very  largely  escape,  it 
fails  to  be  in  reality  a  general  property  tax.  By  some,  this 
situation  may  be  contemplated  with  equanimity  as  tending 
toward  the  single  tax.  But,  whatever  views  one  may  hold 
upon  the  subject  of  the  single  tax,  it  must  be  admitted  that 
the  hiatus  between  the  general  property  tax  law  and  its 
administration  is,  in  itself,  an  evil  which  calls  for  remedy. 
Furthermore,  it  may  be  questioned  whether  the  general  prop- 
erty tax  is  the  best  available  tax  for  state  purposes,  both 
from  the  standpoint  of  a  just  distribution  of  tax  burdens 
and  from  that  of  yield  or  revenue  to  the  state. 

The  fact  that  the  states  still  rely  so  largely  upon  the  gen- 
eral property  tax  or,  at  least,  retain  it  upon  their  statute- 
books,  is  due  in  part  to  a  tendency  on  the  part  of  many  peo- 
ple to  regard  the  theory  of  the  law  rather  than  its  actual 
administration,  in  part  to  constitutional  restrictions  which 
prevent  a  modification  of  the  law,  and  in  part  to  the  feeling 
of  certain  persons  or  classes  of  persons  in  the  community  that 

"  Cf.  H.  C.  Adams,  Science  of  Finance,  pp.  434-449. 

230 


TAXATION  AND  FINANCE 

any  change  would  be  likely  to  work  adversely  to  their  inter- 
ests. In  spite,  however,  of  popular  and  legislative  inertia, 
of  constitutional  restrictions,  and  of  the  opposition  of  inter- 
ested persons,  many  inroads  have  been  made  in  various  states 
upon  the  general  ad  valorem  system  based  on  local  assess- 
ments. The  history  of  state  tax  administration  during  the 
last  few  decades  may  be  said  to  consist  in  large  measure  of 
the  efforts  of  various  states  to  strengthen,  to  modify,  or  to 
provide  substitutes  for  the  general  property  tax.  Among  the 
principal  methods  or  devices  which  have  been  adopted  or 
considered  in  order  to  effect  these  objects  may  be  mentioned 
equalization  and  review,  strengthening  of  local  administra- 
tion, direct  state  assessment  or  apportionment  on  a  basis 
other  than  local  assessment,  separation,  classification,  exemp- 
tion, the  adoption  of  special  state  taxes,  and  the  centraliza- 
tion of  administration  through  the  creation  of  permanent 
state  tax  commissions. 

The  oldest  and  most  widespread  method  adopted  for  the 
purpose  of  remedying  the  inequalities  of  the  general  property 
tax  is  through  what  is  known  as  equalization  or  review  after 
the  original  assessment  has  been  made.  Strictly  speaking, 
the  term  "equalization"  refers  to  the  equitable  adjustment  of 
valuations  as  between  local  taxing  districts  within  a  county 
or  as  between  counties  within  a  state,  but  it  is  also  fre- 
quently used  as  applying  to  such  adjustment  of  individual 
assessments.  The  latter  function,  however,  is  more  properly 
termed  review.  An  individual  whose  property  is  assessed  at 
a  disproportionately  high  figure  as  compared  with  similar 
property  in  the  same  taxing  district  may  ordinarily  appeal  to 
the  courts  for  relief.  In  most  cases,  however,  he  could  se- 
cure no  relief  from  this  source  unless  he  could  prove  that  his 
property  was  assessed  at  more  than  the  true  and  full  value 
required  by  law.  If  his  property  were  assessed  at  eighty 
per  cent  of  full  value  while  the  average  assessments  in  the 
taxing   district   were   only    forty   or   fifty   per   cent   of    true 

231 


AMERICAN  STATE  ADMINISTRATION 

value,  the  court  would  usually  be  powerless  to  grant  relief. 
Even  under  the  supposition,  however,  that  the  court  is  em- 
powered to  redress  grievances  from  the  standpoint  of  the  actual 
administration  of  the  law  rather  than  from  that  of  its  terms, 
judicial  procedure  is  too  slow,  cumbrous,  technical  and  ex- 
pensive to  afford  a  practicable  means  of  relief  except  in  very 
unusual  cases.  Moreover,  court  action  affects  only  the  par- 
ticular individual  who  seeks  such  action,  and  is  consequently 
not  effective  as  a  means  for  broad,  general  relief  from  wide- 
spread inequalities.  Judicial  action  as  a  practicable  means  of 
relief  from  the  inequalities  of  the  general  property  tax  is 
almost  necessarily  inferior  to  administrative  action.^^ 

During  colonial  times,  the  quota  of  the  provincial  tax  to 
be  raised  by  each  taxing  district  was  sometimes  determined 
through  assignment  of  definite  sums  by  the  colonial  legisla- 
ture. This  taxing  district  was  sometimes  the  town,  but  more 
usually  the  county.  The  amounts  levied  probably  were  origi- 
nally mere  rough  estimates  of  the  ability  of  the  respective 
districts  to  contribute  to  the  support  of  the  central  govern- 
ment. This  method  was  adopted  in  Massachusetts  in  1692 
and  the  apportionment  among  the  towns  was  made  by  the 
General  Court  until  1871,  after  which  this  function  was  as- 
signed to  the  State  Tax  Commissioner.^"  Since,  under  this 
plan,  the  state  tax  is  an  apportioned  rather  than  a  percentage 

"  Judicial  action  may  interfere  with  the  efficiency  of  administrative 
action  through  injunction  proceedings  aimed  at  restraining  local  tax 
collectors  from  enforcing  collection  of  taxes  from  large  taxpayers 
and  corporations.  In  order  that  the  state  may  protect  itself  from 
such  a  condition  as  this,  Governor  Hay  of  Washington  recommended 
in  191 1  the  "enactment  of  a  law  directing  that  no  suit  shall  be  brought 
in  any  court  enjoining  the  collection  of  taxes,  but  that  any  person, 
firm,  or  corporation  feeling  unjustly  taxed,  may  pay  under  protest, 
after  which  action  may  be  brought  to  recover,  with  interest  at  the 
legal  rate  from  the  time  payment  was  made,  for  what  sum,  if  any, 
was  improperly  exacted."     Washington  Senate  Journal,  191 1,  p.  49- 

'"  R.  H.  Whitten,  Public  Administration  in  Massachusetts,  Columbia 
University  Studies,  viii,  No.  4,  Chap.  7. 

232 


TAXATION  AND  FINANCE 

tax,  it  does  not  hold  out  any  definite  incentive  to  under- 
assessment. Hence,  there  is  no  definite  need  for  any  special 
machinery  of  equaHzation,  for  such  equahzation  as  exists 
takes  place  in  the  act  of  apportionment  itself. 

In  other  colonies,  legislative  apportionment  of  stated  quotas 
upon  taxing  districts,  which  at  first  v^ere  mere  rough  esti- 
mates of  tax-paying  ability,  later  came  to  be  based  more  defi- 
nitely on  local  valuations  of  property,  and  finally  developed 
into  a  percentage  tax.  Thus,  in  New  Jersey,  by  an  act  of 
1751,  Hsts  of  ratables  were  required  to  be  made  by  the  local 
assessors  for  the  special  purpose  of  enabling  the  legislature 
to  determine  the  quotas  of  the  several  counties  in  levying  a 
provincial  tax.  It  appears  that  this  method  of  securing  in- 
formation did  not  prove  reliable,  in  the  opinion  of  the  legis- 
lature, for,  according  to  the  preamble  to  an  act  of  1768,  it 
"appeared  upon  inspection  of  the  assessment  lists  laid  before 
the  General  Assembly  that  there  were  great  deficiencies ;  and 
the  form  and  directions  prescribed  by  law  have  not  been 
observe.d  by  many  of  the  assessors,  nor  a  true  and  exact 
return  made  of  the  quantity  of  land  in  their  several  town- 
ships." Moreover,  the  quotas  settled  by  the  legislature,  even 
if  equitable  at  first,  soon  became  disproportionate  through 
fluctuations  of  values.  Consequently,  towards  the  end  of  the 
colonial  period,  the  method  of  legislative  apportionment  by 
quotas  was,  for  the  time  being,  abandoned,  and  a  definite  rate 
was  laid  on  the  pound  value  of  estates,  and  a  fixed  or  Hmited 
sum  on  sundry  articles  called  "certainties."  ^^  The  state  tax 
thus  became,  at  least  in  part,  a  percentage  tax.  But  the 
number  and  value  of  estates  and  the  number  of  "certainties" 
in  each  taxing  district  was  dependent  on  the  finding  and 
valuation  of  the  local  assessors  in  such  district.  Thus,  each 
district  assessed  itself  and  thereby  automatically  determined 
the  share  of  the  state  tax  which  it  would  have  to  bear.  As 
long  as  the  state  tax  was  a  relatively  small  part  of  the  total 

"New  Jersey  Laws;  Act  of  March  26,  1778. 

2ZZ 


AMERICAN  STATE  ADMINISTRATION 

tax  burden,  the  inequalities  which  resulted  from  this  method 
of  self-assessment  by  districts  were  of  comparatively  little 
importance.  But  when  the  state  tax  became  heavier,  the  in- 
centive to  underassessment  became  greater,  and  inequalities 
between  taxing  districts  became  more  glaring.  Hence  the 
situation  seemed  to  require  the  creation  of  some  machinery 
of  equalization  for  the  correction  of  such  inequalities. 

For  this  purpose,  state  and  local  boards  of  review  or  equal- 
ization have  now  been  provided  in  most  of  the  states.  In  a 
few  states  there  is,  immediately  above  the  local  assessor,  a 
township  board  of  review  with  power  to  increase  or  decrease 
individual  assessments.  Above  this  board,  there  is  usually  a 
county  board  of  review,  whose  function  it  is  to  equalize  the 
aggregate  assessments  of  the  taxing  districts  in  the  county, 
and  it  may  also,  as  a  rule,  change  individual  assessments. 
The  correction  of  errors,  however,  in  the  assessments  of  the 
comparatively  few  individuals  who  go  to  the  trouble  and 
expense  of  appealing  to  the  county  board  barely  touches  the 
surface  of  the  inequalities  in  the  assessments  as  a  whole.  The 
local  boards  of  review  are  usually  ex  ofUcio  bodies,  who  are 
either  constituted  judges  of  their  own  work  of  assessment  or 
else  are  too  unfamiliar  with  the  conditions  with  which  they  are 
called  upon  to  deal.  Hence,  the  work  of  such  boards  is 
largely  ineffective;  political  influences  not  infrequently  enter 
into  their  determinations,  and  sometimes  their  conduct  of 
official  business  degenerates  into  a  contest  between  groups 
of  members  representing  urban  and  rural  taxing  districts, 
respectively,  in  which  entire  valuations  of  districts  are  arbi- 
trarily increased  or  diminished."^ 

Finally,  in  all  except  a  few  Southern  states,  provision  is 
made  for  some  plan  or  method  of  state  equalization.  In  a 
number  of  states,  the  function  of  state  equalization  has  now 
been  conferred  upon  permanent  state  tax  commissions,  which 

**  Cf.  Report  of  New  Jersey  Special  Tax  Commission  of  1890,  New 
Jersey  Legislative  Documents,  1891,  i,  pp.  12  ff, 

234 


TAXATION  AND  FINANCE 

have  other  important  functions  in  addition.  Formerly,  how- 
ever, the  state  board  of  equaHzation  was  generally  composed 
of  certain  elective  state  officers  acting  ex  officio,  who  natu- 
rally devoted  only  a  comparatively  small  portion  of  their 
time  and  attention  to  the  work  of  the  board.  The  New 
York  State  Board  of  Equalization,  created  in  1859,  was 
somewhat  of  an  improvement  over  the  purely  ex  officio  type 
of  board,  inasmuch  as  three  of  its  nine  members  were  ap- 
pointed by  the  governor.  The  most  cumbrous  and  ineffective 
type  of  state  board  of  equalization  is  represented  by  that 
found  in  Illinois  and,  formerly,  in  Ohio.  The  Illinois  board 
is  composed  of  the  state  auditor  and  one  member  elected 
from  each  of  the  twenty-five  congressional  districts  in  the 
state.  The  Ohio  board,  which  was  abolished  in  1910,  con- 
sisted of  the  state  auditor  and  one  member  elected  from 
each  of  the  forty  senatorial  districts.  The  Illinois  board  meets 
for  a  few  weeks  each  year,  while  the  Ohio  board  met  only 
once  in  ten  years.  The  defects  in  the  organization  of  these 
boards  are  obvious.  They  are  too  large  for  effective  work, 
and  the  method  of  election  by  districts  has  had  the  natural 
tendency  to  make  each  member  feel  that  he  represents  his 
district  for  the  purpose  of  keeping  its  aggregate  valuation  as 
low  as  possible.  The  powers  of  state  boards  of  equalization 
sometimes  include  the  changing  of  the  assessments  of  indi- 
viduals and  corporations  and  the  direct  assessment  of  special 
kinds  of  property.  More  usually,  however,  the  work  of  the 
older  type  of  board  was  confined,  as  in  the  case  of  the  New 
York  board  of  1859,  ^o  effecting  a  horizontal  increase  or 
decrease  of  the  aggregate  valuation  for  entire  counties. 

The  character  and  methods  of  state  boards  of  equalization 
vary  to  such  an  extent  that  it  is  difficult  to  lay  down  any 
general  rule  as  to  their  effectiveness.  Under  especially  fa- 
vorable conditions  they  may  bring  about  a  considerable  in- 
crease in  valuations.  Thus,  in  the  six  years  ending  in  1910, 
the  assessed  valuation  of  property  in  New  Jersey  increased 

235 


AMERICAN  STATE  ADMINISTRATION 

from  $1,055,000,000  to  $2,045,000,000.  After  making  due 
allowance  for  the  natural  expansion  of  values,  it  still  remains 
true  that  much  of  this  increase  was  due  to  the  work  of  the 
State  Board  of  Equalization.  This  board,  however,  was  a 
small  appointive  board,  having  some  powers  of  supervision 
over  local  assessments  and  able  to  secure  the  effective  coop- 
eration of  the  county  boards  of  equalization.  Compare  with 
this  the  situation  in  Illinois  where,  in  1908,  the  aggregate 
assessed  valuation  of  all  property,  as  equalized  by  the  state 
board,  was  $1,263,000,000,  or  only  about  two  hundred  mil- 
lion dollars  more  than  it  had  been  in  1902.^^ 

On  the  whole,  it  may  be  said,  with  respect  to  the  elective 
and  ex  officio  boards,  that  their  action  tends  to  be  more  or 
less  perfunctory.  They  make  comparatively  little  change 
from  the  local  assessments  as  equalized  by  the  county  boards, 
and  such  changes  as  they  make  are  more  apt  to  be  deductions 
than  increases,  and  to  be  arbitrary  in  character  rather  than 
upon  the  basis  of  any  reliable  data.  Having  neither  the 
means  nor,  as  a  rule,  the  inclination,  to  make  an  intensive 
study  of  local  conditions,  these  boards  can  have  no  accurate 
information  apart  from  the  figures  furnished  by  the  local 
assessors  and  boards,  upon  which  to  base  a  scientific  equaliza- 
tion. Moreover,  under  conditions  of  widespread  inequality 
in  local  assessments,  equalization  by  the  state  board  cannot 
effect  a  general  improvement  without  amounting  practically 
to  a  general  reassessment.  Inasmuch,  however,  as  a  general 
reassessment  would  be  beyond  the  scope  of  action  of  the  old- 
fashioned  state  board  of  equalization,  the  original  assess- 
ments, if  unequal  at  first,  are  very  apt  to  remain  so,  as  far  as 
any  corrective  influence  on  the  part  of  the  state  board  is  con- 
cerned.   The  attempt  of  the  board  to  equalize  after  the  assess- 

^  In  1909  there  was  a  very  considerable  increase  in  valuations  over 
the  figures  for  1908,  but  this  was  not  due  to  the  work  of  the  State 
Board  of  Equalization,  but,  in  large  part,  to  the  legal  change  from  the 
one-fifth  to  the  one-third  basis. 

236 


TAXATION  AND  FINANCE 

ment  has  been  not  inaptly  described  as  shutting  the  barn  door 
after  the  horse  has  escaped.  These  boards,  says  SeHgman, 
"are  at  best  mere  makeshifts — clumsy  attempts  to  accomplish 
the  impossible."  ^*  They  represent  ineffective  attempts  to 
cure  inequalities,  whereas  the  need  is  for  some  means  of  pre- 
venting such  inequalities  from  arising  "n  the  first  place.  If 
the  original  assessments  are  reasonably  fair  and  accurate, 
there  will  then  be  little  need  for  any  subsequent  equalization. 

Discarding  equalization  as  an  ineffective  remedy  for  the 
evils  of  the  general  property  tax,  we  are  forced  to  look  else- 
where for  a  solution  of  the  problem  of  securing  an  equitable 
and  productive  system  of  state  taxation  based  on  local  assess- 
ments. Some  degree  of  expertness  in  the  making  of  the  orig- 
inal assessments  is  almost  the  sine  qua  non  of  an  efficient 
ad  valorem  system,  yet  this  can  scarcely  be  attained  under 
prevalent  methods  of  local  assessment  work  and  the  system 
of  local  control  of  the  assessment  officers.  With  the  design 
of  strengthening  the  local  tax  administration,  some  m'asures 
may  be  adopted  which  fall  short  of  central  administrative  su- 
pervision. Some  of  these,  such  as  making  more  severe  the 
penalties  provided  for  evading  the  tax  or  strengthening  the 
oaths  required  of  assessors  and  taxpayers,  have  in  practice 
proved  ineffective.  Some  assistance  to  local  assessors  in  ar- 
riving at  correct  valuations  may  perhaps  be  given  by  the 
passage  of  laws  requiring  that  the  true  consideration  in  the 
conveyance  of  property  shall  be  stated  in  the  deed.  Pressure 
may  perhaps  be  indirectly  brought  to  bear  to  counteract  to 
some  extent  the  general  tendency  towards  undervaluation 
through  the  enactment  of  laws  limiting  the  tax  rate.^^ 

Of  a  somewhat  more  promising  character  are  laws  found 
in  some  states  requiring  publication  of  assessment  lists.  Such 
laws  have  been   passed   in   Illinois,  Ohio,  and  a   few   other 

'*  Essays  in  Taxation,  8th  ed.,  p.  22. 

*  Such,  for  example,  as  the  Ohio  law  of  1910.  Ohio  Session  Laws, 
19 10,  p.  430. 

237 


AMERICAN  STATE  ADMINISTRATION 

states.  The  publication  is  made  in  pamphlet  form  or  in  the 
newspapers  at  the  expense  of  the  county.  The  object  of  pub- 
lication is  to  enable  the  taxpayers  in  each  community  to  com- 
pare the  assessments  of  different  pieces  of  property,  to  enlist 
their  efforts  in  discovering  and  correcting  inequalities,  and 
thus  to  arrive  at  something  approaching  a  community  valua- 
tion. As  a  general  principle,  publicity  in  assessments  is  un- 
doubtedly a  wholesome  influence.  Unfortunately,  however, 
the  laws  are  defective  in  some  respects  and  do  not  go  far 
enough  in  others.  They  may  enable  the  taxpayer  to  check  up 
the  results  of  the  assessors'  work,  but  publication  is  some- 
times delayed  until  it  is  too  late  to  correct  inequalities  except 
through  the  action  of  the  board  of  equalization.  Moreover,  the 
publication  merely  gives  the  results  of  the  assessors'  work  and 
fails  to  give  what  might  prove  to  be  the  more  valuable  infor- 
mation regarding  the  methods  by  which  they  arrived  at  their 
conclusions. 

The  publication  of  assessment  lists  is  an  appeal  to  pri- 
vate initiative  to  strengthen  the  assessors'  work  by  aiding  in 
eliminating  inequalities.  A  still  more  direct  appeal  to  private 
initiative  with  this  purpose  in  view  is  found  in  the  so-called 
tax  inquisitor  law,  formerly  found  in  Ohio,^^  lowa,^''  and  a 
few  other  states.  This  law  authorized  the  county  board  to  em- 
ploy private  persons  to  ferret  out  such  taxable  property  as  may 
have  escaped  the  assessor,  and  to  pay  such  persons  a  commis- 
sion based  on  the  amount  of  additional  taxes  secured  through 
their  efforts.  That  these  laws  are  unsatisfactory  in  practice  is 
implied  in  the  repeal  of  her  law  on  this  subject  by  Ohio,  which 
has  shown  more  confidence  than  most  other  states  in  the  feasi- 
bility of  so  strengthening  the  administration  of  the  general 
property  tax  as  to  make  it  a  workable  and  equitable  tax.^^ 

It   ought   not,   however,   to   be  necessary   to    pay    private 


^yj  Ohio  Laws,  204.  ^'Laws  of  1900,  Ch.  50. 

"Cf.  T.  N.  Carver,  "The  Ohio  Tax  Inquisitor  Law,"  American  Eco- 
nomic Association,  Economic  Studies,  iii,  No.  3,  June,  i8g8. 

2?S 


TAXATION  AND  FINANCE 

persons  to  do  that  which  public  officials  are  already  being 
paid  to  do.  Such  officials  should  be  given  the  means  and 
opportunity  to  perform  their  duties  so  efficiently  that  there 
would  be  no  need  for  any  dependence  on  the  efforts  of  tax 
ferrets  or  other  informers.  Assessors  should  be  given  longer 
terms  or  even  indefinite  tenure,  more  continuous  employment, 
more  adequate  compensation,  and  should  be  supplied  with  tax 
maps  and  other  necessary  tools.  In  order  to  effect  some  of 
these  improvements,  a  change  in  the  size  of  the  local  taxing 
district  would  be  necessary  in  many  states.  In  rural  districts, 
the  taxing  unit  should  be  not  less  than  the  county,  as  it  is 
already  in  a  number  of  states.  The  establishment  of  the 
county-assessor  system  and  the  abolition  of  the  numerous 
local  assessors  has  been  strongly  recommended  by  a  number 
of  state  tax  commissions.^^  But  in  states  where  the  township 
is  the  local  unit  of  government  for  general  purposes,  it  is 
apt  to  be  utilized  as  the  tax  unit  also.  Where  the  local  unit, 
less  than  a  county,  is  retained,  there  should  be  a  county  su- 
pervisor of  assessments  as  a  connecting  link  between  the 
local  and  the  state  authorities,  such  as  exist  in  Indiana,  Wis- 
consin and  other  states.  The  consolidation  of  all  the  taxing 
districts  within  a  county  into  the  county  unit  would  bring 
about  conditions  conducive  to  the  granting  to  assessors  of 
more  adequate  compensation  and  the  opportunity  for  more 
continuous  employment.  Assessors  should  be  appointive 
rather  than  elective,  and  the  appointments  should  be  made  by 
the  county  board  subject  to  state  central  supervision,  or  by 
the  state  tax  board  in  accordance  with  civil  service  regula- 
tions, as  in  the  case  of  the  Wisconsin  assessors  under  the  in- 
come tax  law  of  that  state,  enacted  in  191 1. 

^Report  of  Minnesota  Tax  Commission,  1912,  p.  123;  Report  of 
North  Dakota  Tax  Commission,  1912,  p.  158;  Report  of  Kansas  Tax 
Commission,  1913,  pp.  35-37,  85.  The  North  Dakota  Commission  calls 
attention  to  the  fact  that  uniformity  is  impossible  in  that  state,  where 
there  are  over  1,400  local  assessors  with  no  adequate  central  control, 

239 


AMERICAN  STATE  ADMINISTRATION 

The  proposed  reforms  in  local  tax  administration  outlined 
above  are  of  importance  not  only  to  the  locality  but  also  to 
the  state,  both  from  the  standpoint  of  safeguarding  its 
sources  of  revenue  and  also  from  that  of  the  efficiency  of  its 
administrative  machinery.  Most  of  the  reforms  mentioned 
do  not  involve  central  administrative  supervision,  but,  if  in- 
troduced, they  would  create  conditions  upon  which  such 
supervision  could  work  with  much  greater  effectiveness  than 
upon  those  now  generally  prevalent.  To  the  reforms  men- 
tioned, therefore,  central  administrative  superv-ision  should 
be  added  in  order  to  create  a  well-rounded  and  efficient  sys- 
tem, for,  as  has  been  said,  "the  experience  of  the  American 
states  demonstrates  beyond  all  doubt,  cavil,  or  contradiction, 
that  there  never  was  and  never  can  be  a  generally  satisfactory 
assessment  by  purely  local  authorities."  ^°  Inasmuch,  how- 
ever, as  the  assessments  made  by  local  officers  constitute  the 
basis  of  the  local  tax  as  well  as  of  the  state  general  property 
tax,  the  localities  are  directly  concerned  in  the  fairness  and 
accuracy  of  such  assessments,  and  it  would  therefore  be 
scarcely  feasible  in  most  states  to  place  the  selection  of  the 
local  assessors  directly  in  the  hands  of  the  central  state  au- 
thorities, for  this  would  be  considered  by  many  as  too  great 
a  departure  from  the  principle  of  home  rule.  In  order,  how- 
ever, to  safeguard  the  interests  of  the  state  and  to  prevent 
the  virtual  nullification  of  its  laws,  some  degree  of  central 
administrative  supervision,  either  direct  or  indirect,  should 
be  established  over  the  local  assessor  and  over  the  methods  of 
local  assessment  work. 

Central  supervision  of  local  assessments  has  advanced  fur- 
ther and  more  rapidly  in  those  states  having  permanent  state 
tax  commissions.  State  central  agencies  having  to  do  with 
tax  matters  vary  widely  in  their  organization,  method  of  se- 
lection and  the  scope  of  their  powers.     Some  functions  re- 

'**  C.  J.  Bullock,  in  Proceedings  of  the  Washington  State  Tax  Con- 
ference, 1914,  p.  230. 

240 


TAXATION  AND  FINANCE 

lating  to  taxation  have  been  performed  in  some  states  for 
many  years  by  the  older  state  fiscal  officers,  provided  in  the 
constitutions,  such  as  the  state  comptroller  in  New  York  and 
Maryland  and  the  auditor-general  in  Pennsylvania.  More- 
over, permanent  boards,  having  power  of  directly  assessing 
special  classes  of  property  and  sometimes  having  also  the 
power  of  equalization,  have  for  many  years  existed  in  certain 
states,  as  in  Illinois  since  1872.  But  the  permanent  state 
tax  commission,  properly  so  called,  is  of  comparatively  re- 
cent growth  and  represents  a  further  degree  of  centralization 
than  was  brought  about  by  the  older  fiscal  officers  or  by  the 
earlier  type  of  board.  State  central  agencies,  having  to  do 
with  tax  matters,  particularly  with  the  assessment  of  corpo- 
rations, have  been  classified  into  (a)  ex  officio  boards  or 
officials,  (b)  boards  or  officials  appointed  or  elected  solely 
for  the  purpose  of  administering  tax  laws,  and  (c)  composite 
boards,  composed  partly  of  ex  officio  and  partly  of  selected 
members.^^  This  classification,  it  will  be  noticed,  is  based 
merely  on  the  organization  or  method  of  selection,  and  makes 
no  distinction  in  respect  to  the  powers  possessed  by  the 
boards.  Upon  the  latter  basis,  state  central  tax  agencies 
may  be  classified  into  those  having  (a)  power  to  assess  di- 
rectly certain  forms  of  property  not  suitable  for  local  as- 
sessment, such  as  corporate  property,  (b)  power  of  direct 
assessment  and  also  power  to  equalize  tax  assessments  gen- 
erally, and  (c)  in  addition  to  the  above  powers,  that  of  ex- 
ercising supervision  over  local  assessors  and  assessment 
work.^^  Permanent  state  tax  commissions,  strictly  speak- 
ing, fall  only  into  the  last  of  these  three  classes. 

The  movement  for  the  establishment  of  such  commissions, 


^Report  of  the  United  States  Commissioner  of  Corporations  on  the 
Taxation  of  Corporations,  Part  V,  p.  9. 

"Cf.  S.  T.  Howe,  "The  Central  Control  of  the  Valuation  of  Tax- 
able Subjects,"  in  Annals  of  the  American  Academy  of  Political  and 
Social  Science,  March,  1915,  p.  120. 

241 


AMERICAN  STATE  ADMINISTRATION 

with  powers  greater  than  those  merely  of  equalization  and 
assessment,  came  to  the  front  with  the  creation  in  1891  of 
the  Indiana  State  Board  of  Tax  Commissioners.  Similar 
bodies  were  established  in  New  York  in  1896,  in  Michigan 
and  Wisconsin  in  1899,  and  the  movement  has  since  spread 
so  that  at  present  such  bodies  are  found  in  more  than  thirty 
states,  including  most  of  the  more  important  states.  In  a 
few  states,  such  as  Massachusetts  and  West  Virginia,  this 
body  consists  of  a  single  official  or  tax  commissioner.  In  the 
great  majority  of  states,  however,  the  commission  is  com- 
posed of  either  three  or  five  members,  serving  usually  for 
terms  of  four  or  six  years,  and  receiving  annual  salaries 
varying  from  $2,000,  in  Maine  and  South  Dakota,  to  $6,000, 
in  New  York.  They  are  usually  appointed  by  the  governor 
with  the  consent  of  the  senate,  and  are  frequently  also  sub- 
ject to  removal  by  the  governor  for  cause.  The  more  highly 
paid  commissioners  are  generally  required  to  devote  their 
entire  time  to  the  duties  of  the  office.  The  Massachusetts 
commissioner,  though  serving  for  but  a  three-year  term,  is 
usually  reappointed.  Short  terms,  unless  accompanied  with 
the  practice  of  reappointment,  may  interfere  with  the  ef- 
ficiency of  the  board.  Provisions  requiring  that  not  more 
than  one  member  of  the  board  shall  come  from  the  same 
judicial  district  of  the  state  and  that  not  more  than  a  bare 
majority  shall  belong  to  the  same  political  party,  as  found 
in  the  act  creating  the  New  Mexico  commission  of  1915,^^ 
may  also  seriously  interfere  with  the  efficiency  of  the  board. 
The  members  of  the  board  should  be  experts  in  tax  matters, 
and  should  be  appointed  without  regard  to  their  party  affilia- 
tions or  local  residence. 

The  powers  exercised  by  permanent  state  tax  commissions 
vary  widely.  As  already  pointed  out,  the  functions  of  di- 
rect assessment  of  corporations  and  of  equalization  are  usu- 
ally conferred  upon  the  commissions,  though,  in  certain  in- 

^  New  Mexico  Session  Laws,  191S,  Ch.  54. 

242 


TAXATION  AND  FINANCE 

stances,  one  or  both  of  these  functions  may  be  exercised  by 
some  other  agency,  of  which  the  tax  commission  may  or  may 
not  be  a  part.^*  Wide  differences  in  the  extent  of  the  tax 
commission's  power  are  found  with  respect  to  the  measure 
of  supervision  or  control  which  it  exercises  over  local  as- 
sessors. The  largest  powers  are  usually  found  in  the  case 
of  recently  created  commissions  or  those  whose  powers  have 
been  recently  amended  by  law.  Only  in  very  few  cases, 
however,  are  the  powers  of  the  commission  fully  adequate, 
while  some  are  almost  purely  advisory.  The  more  important 
specific  powers  which  have  been  conferred  upon  tax  com- 
missions by  law  in  various  states  may  be  summarized  as 
follows : 

(i)  Power  to  prescribe  uniform  records,  blanks,  assess- 
ment rolls  and  all  other  necessary  forms  for  use  by  local 
assessors,  and  to  suggest  uniform  systems  of  public  account- 
ing for  local  units  of  government. 

(2)  Power  to  exercise  a  general  supervision  over  the  en- 
tire administration  of  the  tax  laws,  to  confer  with  and  ad- 
vise assessors  and  other  local  tax  officials,  and  to  furnish 
them  with  information  and  instructions  relating  to  the  dis- 
charge of  their  duties. 

(3)  Power  to  require  reports  from  the  local  assessors  and 
to  inspect  and  criticize  their  work,  and  to  require  their  at- 
tendance at  state-wide  tax  conferences. 

(4)  Authority  to  investigate  assessments  and  tax  condi- 
tions generally  for  the  purpose  of  securing  information  upon 
which  to  base  the  action  of  the  commission,  or  to  make 
recommendations  to  the  legislature,  and,  for  this  purpose, 
to  subpoena  witnesses,  take  testimony  under  oath,  and  require 
the  production  of  books  and  papers. 

(5)  To  remove  local  assessors  for  inefficiency  or  derelic- 

**  For  example,  in  New  York,  the  state  board  of  equalization  is  com- 
posed of  the  state  tax  commission  and  the  commissioners  of  the  land 
office.    Session  Laws  1915,  Ch.  317. 

243 


AMERICAN  STATE  ADMINISTRATION 

tion  o£  duty,  or  to  cause  proceedings  to  be  instituted  for  this 
purpose  and  for  the  purpose  of  enforcing  the  tax  laws 
generally. 

(6)  To  appoint  county  officials  or  boards  having  power  to 
assess  or  to  supervise  assessments. 

(7)  To  order  the  reassessment  of  particular  pieces  of  prop- 
erty or  of  entire  taxing  districts. 

(8)  To  equalize  the  assessment  of  property  throughout  the 
state,  or  to  order  a  reequalization  of  assessments  by  the  county 
boards. 

(9)  To  assess  directly  certain  special  classes  of  property. 
Some  of  the  above  powers  are  found  quite  generally;  others 

in  comparatively  few  states.  Inasmuch  as  it  is  scarcely  prac- 
ticable in  states  of  average  size  for  the  state  tax  commission 
to  watch  closely  the  work  of  all  of  the  hundreds  of  local 
assessors,  the  efficiency  of  central  supervision  over  such  local 
assessors  is  increased  by  the  existence  of  county  supervisors 
of  assessors,  particularly  if  the  latter  are  subject,  to  some 
extent  at  least,  to  direct  central  control.  The  direct  appoint- 
ment by  the  state  commission  of  the  hundreds  of  local  as- 
sessors is  hardly  feasible,  not  only  because  such  a  move  would 
have  to  overcome  the  weight  of  popular  prejudice  in  favor 
of  so-called  home  rule  (or  home  mis-rule)  as  well  as  consti- 
tutional difficulties  in  some  states;  but  also  because,  under 
present  conditions,  it  is  doubtful  whether  the  commission 
should  be  burdened  with  the  task  of  selecting  so  many  local 
assessors.  There  would,  however,  be  less  objection  to,  and 
many  positive  reasons  in  favor  of,  giving  the  commission  the 
power  of  removing  local  assessors  in  particular  cases  of 
flagrant  incompetence  and  the  further  power  of  filling  the 
vacancies  thus  created.  If,  however,  township  assessors  are 
abolished  and  county  assessors  are  given  original  assessing 
powers,  the  problem  of  state  control  is  simplified.  In  191 1 
Oklahoma  abolished  her  township  assessors  and  township 
boards  of  equalization,  but  the  county  assessors  were  made 

244 


TAXATION  AND  FINANCE 

elective  by  popular  vote.  In  19 13  county  officials  or  boards 
with  original  assessing  powers  were  made  subject  to  direct 
appointment  by  state  central  authority  in  Ohio  and  Montana. 
Two  years  later,  however,  this  experiment  was  abandoned  in 
both  of  these  states.  A  compromise  plan  was  adopted  by 
Maryland  in  1914  through  the  creation  of  a  county  super- 
visor of  assessments,  who  is  appointed  by  the  state  tax  com- 
mission from  a  list  of  five  persons  submitted  by  the  county 
commissioners  of  each  county.^^  It  would  be  preferable,  how- 
ever, to  have  the  county  assessor  or  supervisor  of  assess- 
ments appointed  by  the  county  board  of  supervisors  or  county 
commissioners  from  eligible  lists  submitted  by  the  state  tax 
commission  or  state  civil  service  commission.  The  gaunty 
assessors  in  Kansas  are  appointed  by  the  boards  of  county 
commissioners,  but  are  largely  under  the  control  of  the  state 
tax  commission,  by  whom  they  may  be  removed  from  office 
for  dereliction  of  duty.  In  a  number  of  states,  the  power 
of  the  state  commission  to  remove  local  or  county  assessors 
is  so  restricted  that,  in  actual  practice,  the  effectiveness  of 
central  supervision  over  local  assessments  is  not  so  great  as 
it  may  appear  from  a  mere  reading  of  the  statutes.  Thus, 
the  former  State  Board  of  Equalization  of  Taxes  in  New 
Jersey  was  empowered  to  remove,  upon  complaint  of  the 
county  board  of  taxation,  any  local  assessor  willfully  failing 
to  comply  with  the  laws  of  the  state  relating  to  the  assess- 
ment of  taxes.^^  On  account,  however,  of  the  practical  diffi- 
culties in  the  way  of  proving  willful  negligence  on  the  part 
of  local  assessors  in  the  discharge  of  their  duties,  cases  have 
occurred  in  which  the  Board  found  itself  unable  to  apply  a 
remedy  in  the  face  of  gross  incompetence  and  manifest  fa- 
voritism on  the  part  of  local  assessors.^^     The  Wisconsin  in- 

**  Maryland  Laws,  1914,  Ch.  841. 
^'N.  J.  Laws:  Act  of  April  14,  1906,  Sect.  11. 

"Proceedings  of  Fourth  Conference  of  National  Tax  Association, 
J910,  p.  360. 

245 


AMERICAN  STATE  ADMINISTRATION 

come  tax  assessors,  who  also  have  supervision  over  local 
assessments,  are  appointed  by  the  state  tax  commission  and 
are  also  subject  to  removal  or  transfer  by  the  commission  for 
adequate  cause.  This  plan,  which  was  introduced  as  a  by- 
product of  the  state  income  tax  law  of  191 1,  has  been  pro- 
nounced "the  first  attempt  on  American  soil  to  carry  out  the 
taxation  of  either  property  or  income  by  means  of  assessors 
responsible  directly  to  state  control  and  free  from  local  influ- 
ence." ^^  Centralization  through  control  over  county  assessors 
is  also  found  in  other  states,  and  the  work  both  of  the  state 
commissions  and  the  local  assessors  is  thereby  greatly  facili- 
tated. Matters  of  local  detail  and  the  close  supervision  over 
the  hundreds  of  local  assessors  can  be  better  attended  to  by 
the  county  tax  officials,  thus  allowing  the  state  commission 
to  devote  its  attention  more  fully  to  general  supervision  and 
to  the  shaping  of  a  broad  state-wide  policy  within  the  limits 
of  the  law.  Such  specialization  of  function  does  not  neces- 
sarily produce  looseness  of  control  over  the  local  assessors  if 
the  county  official  is  under  the  effective  supervision  of  the 
state  body. 

The  exercise  by  state  tax  commissions  of  the  power  to  in- 
vestigate tax  conditions  generally  and  to  make  intensive 
studies  of  the  assessment  work  in  particular  localities  is  im- 
portant as  affording  a  basis  upon  which  to  build  up  an  im- 
proved administration  of  the  state  tax  laws.  A  central  agency 
for  the  collection  of  such  information  is  indispensable,  for 
the  localities  do  not  usually  have  the  means  of  employing  the 
necessary  experts,  even  had  they  the  inclination  or  power  to 
make  extensive  investigations.  The  state  commission  "repre- 
sents a  joint  or  cooperative  method  of  doing  for  the  local 
governments  what  they  cannot  afford  to  do  severally  and  in- 
dividually.    It  is  the  economical  way  of  securing  efficient  ad- 

**  C.  J.  Bullock,  in  Proceedings  of  National  Tax  Association,  1912, 
p.  340. 

246 


TAXATION  AND  FINANCE 

ministration.     When  properly   equipped,   it   acts   as  a  great 
central  reserve  of  expert  aid."  ^^ 

The  advice  and  help  which  the  commission  is  able,  through 
its  broader  outlook  and  wider  information,  to  give  to  local 
assessors  may  be  of  considerable  benefit  in  improving  the 
character  of  local  assessments,  even  if  the  powers  of  the  com- 
mission are  merely  advisory.  But  the  best  results  cannot  usu- 
ally be  obtained  unless  the  commission  has  power  to  insure 
compliance  with  its  advice  and  instructions.  The  power  of 
the  former  New  York  State  Board  of  Tax  Commissioners 
to  investigate  and  examine  into  methods  of  assessments  was 
described  as  valueless  and  its  power  to  advise  local  assessors 
as  to  their  duties  was  declared  by  the  chairman  of  the  board 
to  be  a  farce,  because  the  board  had  "no  authority  to  carry 
its  rulings  and  instructions  into  effect."  ^"  Legislatures  have 
generally  been  slow  in  granting  to  state  tax  commissions  ade- 
quate powers  of  enforcing  their  orders  and  instructions.  A 
New  York  law  of  191 5  creates  a  state  tax  department,  at 
the  head  of  which  is  the  state  tax  commission,  consisting  of 
three  commissioners,  appointed  by  the  governor  and  senate. 
The  commission  is  authorized  to  enforce  the  use  of  prescribed 
blanks  by  local  assessors  and  to  enforce  compliance  with  its 
instructions.  But  the  act  lamely  concludes  that  if  the  as- 
sessors fail  to  comply  with  the  lawful  orders  of  the  commis- 
sion, the  latter,  in  order  to  compel  such  compliance,  must 
apply  to  the  courts  for  an  order  to  that  effect." 

The  most  powerful  instrument  yet  placed  in  the  hands  of 
the  state  tax  commissions,  designed  to  give  them  control  over 
the  work  of  local  assessors,  is  the  power  to  order  a  reassess- 
ment of  particular  pieces  of  property  or  of  entire  taxing  dis- 


"T.  S.  Adams,  in  Proceedings  of  the  Fifth  New  York  State  Con- 
ference on  Taxation,  1915,  p.  20. 

*°T.  F.  Byrnes,  in  Proceedings  of  the  Seventh  Conference  of  the 
National  Tax  Association,  1913,  pp.   187-189. 

"  New  York  Session  Laws,  1915,  Ch.  317. 

247 


AMERICAN  STATE  ADMINISTRATION 

tricts.  The  New  York  law  of  191 5,  mentioned  above,  contains 
a  provision  for  reassessment,  but  the  provision  is  defective 
in  two  important  respects.  In  the  first  place,  the  commission 
has  no  power  directly  to  order  a  reassessment,  but  must 
apply  to  a  justice  of  the  supreme  court,  who  may  issue  such 
an  order.  In  the  second  place,  the  reassessment,  if  so  or- 
dered, is  to  be  made  by  the  same  assessors  who  made  the 
original  assessments.  Much  more  efficacious  is  the  power  of 
reassessment  vested  in  the  state  tax  commissions  of  Wis- 
consin, Minnesota,  Ohio,  Kansas,  and  a  few  other  states.  In 
these  states  the  commission  may,  either  upon  informal  com- 
plaint of  aggrieved  taxpayers,  or  groups  of  taxpayers,  or  upon 
its  own  initiative,  order  a  reassessment  to  be  made  directly 
by  its  own  agents  and  in  accordance  with  its  own  rules.  The 
expense  of  making  the  reassessment,  moreover,  is  to  be  borne 
by  the  district  concerned.  A  powerful  incentive  is  thus  set 
at  work  which  tends  towards  securing  equitable  and  efficient 
assessments  in  the  first  instance.  The  very  existence  of  the 
untrammeled  power  of  ordering  a  reassessment  renders  its 
frequent  use  unnecessary.^^ 

The  work  of  state  tax  commissions  has  undoubtedly 
brought  about  in  most  states  a  very  decided  increase  in  the 
percentage  of  actual  assessments  to  full  value.  The  imme- 
diate effect  of  the  establishment  of  the  Kansas  Tax  Com- 
mission in  1907  was  the  increase  of  the  total  assessed  valua- 
tion of  property  in  the  state  from  $425,ocx3,ooo  in  that  year 
to  $2,452,000,000  in  1908,  or  nearly  a  six-fold  increase.  The 
establishment  of  tax  commissions  in  other  states  shows  sub- 
stantial, if  not  such  striking,  results.  The  good  effects  of  the 
establishment  of  state  tax  commissions,  however,  are  not  con- 

"  The  constitutionality  of  reassessment  statutes  has  been  upheld  by 
the  courts  in  Wisconsin,  Michigan  and  Minnesota.  State  ex  rel.  Hus- 
sey  vs.  Daniels,  143  Wis.,  649;  State  Tax  Commissioner  vs.  Board  of 
Assessors,  124  Mich.,  491 ;  State  vs.  Minnesota  &  Ontario  Power  Co., 
141  N.  W.,  839.  Cf.  Proceedings  of  National  Tax  Association,  1913, 
pp.  174  ff. 

248 


TAXATION  AND  FINANCE 

fined  merely  to  increasing  the  aggregate  valuations,  but  are 
evidenced  also  in  a  diminution  of  the  inequalities  between  tax- 
payers and  tax  districts,  and  a  general  invigoration  of  the 
entire  system  of  tax  administration.  In  some  states  the  work 
of  the  commissions  has  removed  the  incentive  resting  upon 
the  assessors  of  a  county  to  undervalue  property  in  order 
that  the  county  may  bear  as  small  a  share  of  the  state  tax 
as  possible.  Thus,  in  Washington,  the  state  commission,  by 
making  intensive  studies  of  selected  pieces  of  property  in  a 
county  for  the  purpose  of  arriving  at  their  true  value  and  by 
comparing  such  value  with  the  assessed  value,  is  able  to  de- 
termine approximately  the  average  percentage  of  undervalua- 
tion of  all  property  in  the  county.  This  ratio  is  used  in  de- 
termining the  full  value  of  all  property  in  the  county,  and 
upon  this  basis  the  state  levy  is  distributed  among  the  coun- 
ties. Thus,  undervaluation  profiteth  the  county  nothing,  so 
far  as  the  burden  of  the  state  tax  is  concerned. 

For   references   and    collateral  reading   see    end   of   next 
chapter. 


CHAPTER   XI. 
TAXATION  AND  FINANCE  (Continued) 

In  the  preceding  chapter  we  have  noted  the  prevalence  and 
the  distinguishing  characteristics  of  the  general  property  tax, 
the  inequalities  to  which  it  gives  rise,  and  the  principal  reme- 
dies or  expedients  which  have  been  adopted  for  the  improve- 
ment of  its  administration.  We  now  turn  to  a  consideration 
of  the  steps  which  have  been  taken  towards  the  modification, 
the  disintegration,  or  the  abandonment  of  the  general  prop- 
erty tax  as  a  source  of  state  revenue. 

The  general  property  tax,  as  we  have  seen,  finds  its  most 
suitable  application  in  an  agricultural  stage  of  economic  de- 
velopment when  the  mass  of  property  is  tangible  and  but 
slightly  diflferentiated.  During  the  first  half  of  the  nineteenth 
century  the  general  property  tax  became  nearly  everywhere 
the  principal  source  of  state  income,  yet  even  at  that  time 
the  seeds  of  its  disintegration  were  being  sown  in  the  rapid 
rise  of  new  and  important  classes  of  property  and  in  the  in- 
creasing differentiation  of  the  forms  of  wealth.  Much  of  this 
new  property  was  intangible  and  invisible,  yet  no  general 
effort  was  made  to  change  the  machinery  of  administration 
so  as  to  adapt  it  to  the  changed  conditions.  Special  taxes, 
however,  were  early  levied  upon  special  classes  of  property, 
such  as  banking  and  insurance  corporations.  Thus,  in  1810, 
New  Jersey  made  an  attempt  to  tax  intangible  wealth  in  the 
form  of  bank  stock,  the  president  and  directors  of  specified 
banks  being  required  to  pay  annually  into  the  state  treasury 
one-half  of  one  per  cent  upon  the  paid-up  capital  stock.^     In 

^  New  Jersey  Session  Laws :  Act  of  November  2,  1810. 

250 


TAXATION  AND  FINANCE 

1826  and  1 83 1,  respectively,  the  same  state  levied  a  per- 
centage tax  upon  the  gross  premiums  of  foreign  insurance 
companies  and  upon  the  capital  stock  of  domestic  insurance 
companies.^  A  tax  upon  the  paid-up  capital  stock  of  banking 
corporations  was  also  levied  in  Massachusetts  in  18 12,  and  in 
Indiana  in  1820.  In  1814  Pennsylvania,  for  the  first  time, 
levied  a  special  tax  on  corporations  in  the  form  of  a  tax  on 
bank  dividends.^  In  the  case  of  most  of  these  early  special 
taxes  on  intangible  property,  however,  no  special  machinery 
for  the  collection  of  the  tax  was  provided,  but  the  same  meth- 
ods of  local  administration  were  utilized  as  in  the  case  of 
taxes  on  tangible  property.  Naturally,  comparatively  little 
revenue  was  derived  from  these  taxes,  but  the  employment  of 
special  taxes  distinct  from  those  employed  in  the  taxation  of 
individual  property  was   significant. 

After  1830  the  property  of  transportation  companies  be- 
came gradually  more  and  more  important  among  the  new 
forms  of  wealth  having  peculiar  characteristics  distinguish- 
ing them  from  the  ordinary  property  of  individuals.  In  states 
whose  constitutions  did  not  require  the  uniform  taxation  of 
all  property,  that  of  railroad  corporations  was  sometimes  en- 
tirely exempted  from  state  taxation,  as  an  encouragement  of 
the  enterprise.  Other  states  gave  the  railroads  the  benefit 
very  largely  of  practical  exemption  as  the  result  of  the  attempt 
to  tax  them  by  ineffective  methods.  At  first  little  differen- 
tiation of  method  is  discernible,  but  railroads,  in  common  with 
the  ordinary  property  of  individuals,  were  usually  assessed 
by  local  officials  and  taxed  in  accordance  with  the  provisions 
of  the  general  property  tax.  As  long  as  the  property  of  rail- 
roads, as  well  as  that  of  other  corporations,  was  almost  purely 
local  in  character,  it  was  natural  that  they  should  be  subjected 
to  the  general  property  tax,  locally  administered.     But  when, 


*  Acts  of  December  26.  1826,  and  January  21,  1831. 

*  Report   of    United   States   Commissioner   of   Corporations   on    the 


Taxation  of  Corporations,  Part  II,  p.  64. 

251 


AMERICAN  STATE  ADMINISTRATION 

with  the  consoHdations  and  formation  of  trunk  lines  after 
the  middle  of  the  nineteenth  century,  railroads  ceased  to  have 
a  local  situs,  the  division  of  the  responsibility  for  the  assess- 
ment and  collection  of  railroad  taxes  among  a  large  number 
of  local  authorities  became  extremely  unsatisfactory.  Under 
this  system,  or  lack  of  system,  in  which  each  local  assessor 
acted  as  a  law  unto  himself,  there  resulted  a  great  lack  of 
uniformity  and  possibility  of  evasion  which  cried  out  for 
remedy.  Similar  results  also  were  experienced  from  the  local 
taxation  of  other  corporations  engaged  in  business  operations 
in  more  than  one  locality. 

Dissatisfaction  with  these  conditions  led  to  the  imposition 
upon  railroad  and  other  corporations  of  special  state  taxes 
as  supplementary  to,  or  in  modification  of,  the  general  prop- 
erty tax,  and  to  centralization  in  the  assessment  and  collection 
of  such  special  taxes.  Thus,  in  1862,  Iowa  adopted  a  tax 
upon  the  gross  receipts  of  railroads.  New  York  enacted  in 
1880  a  corporation  tax  law  providing  for  the  levying  of  a 
special  state  tax  upon  the  capital  stock,  gross  receipts  or  other 
base  in  the  case  of  the  different  corporations  taxable  under 
the  act.  New  Jersey  adopted  at  the  start  the  policy  of  levying 
special  state  taxes  upon  railroad  and  canal  companies.  Thus, 
by  an  act  of  1830,  such  companies  were  required  to  pay  the 
state  an  amount  of  taxes  based  upon  the  number  of  passengers 
and  tonnage  of  freight  transported,  but  in  1849  the  tax  was 
changed  to  a  percentage  tax  upon  the  cost  of  all  railroads 
having  a  net  income  of  at  least  six  per  cent  of  the  cost.* 
The  adoption  of  each  of  these  special  state  taxes  was  accom- 
panied by  provisions  designed  to  secure  centralization  in  the 
administration  of  such  taxes. 

It  is  an  important  fact  to  note  in  the  development  of  the 
systems  of  state  taxation  that,  while  the  general  property  tax 
is  essentially  a  locally  administered  tax,  the  adoption  of  spe- 

*  New  Jersey  Session  Laws :  Acts  of  February  4,  1830,  and  February 
22,  1849. 

252 


TAXATION  AND  FINANCE 

cial  state  taxes  is  usually  accompanied  by  an  offshoot  or  by- 
product in  the  form  of  centralized  administration.  This  is 
especially  apt  to  be  true  if  the  property  upon  which  the  new 
special  taxes  are  levied  has  an  extra-local  situs,  as  in  the 
case  of  most  railroads.  The  conservatism  of  American  state 
legislatures  in  tax  matters  is  so  deep  rooted  that  definite 
stimuli,  such  as  the  occasion  of  levying  a  special  state  tax 
and  the  need  for  enlarged  state  revenues,  seem  to  be  neces- 
sary to  overcome  their  aversion  to  innovation  sufficiently  to 
induce  them  to  introduce  centralization  in  administration. 
Even  when  acting  under  these  influences,  the  legislatures  usu- 
ally embark  upon  the  policy  of  centralized  administration  with 
so  much  timidity  and  hesitation  as  almost  to  neutralize  its 
effects.  Thus,  in  the  case  of  special  state  taxes  mentioned 
above,  assessment  and  collection  was  to  be  made  by  the  state 
treasurer  in  New  Jersey  and  Iowa,  and  by  the  state  comp- 
troller in  New  York.  Thus,  no  special  state  machinery  was 
provided  for  the  performance  of  the  new  function,  but  exist- 
ing fiscal  officers  were  utilized  for  the  purpose.  Moreover, 
the  assessments  were  to  be  made  upon  the  basis  of  the  state- 
ments of  cost,  receipts,  et  cetera,  returned  by  the  corporations 
themselves,  and  no  adequate  means  was  provided  for  com- 
pelling the  making  of  the  returns,  nor  for  verifying  the  re- 
turns when  made,  through  inspection  of  the  books  and  ac- 
counts of  the  corporations.  The  assessment  under  these  acts, 
therefore,  practically  amounted  in  large  measure  to  self-as- 
sessment by  the  corporations.  The  results  of  this  feebleness 
of  central  control  are  seen  in  New  Jersey,  where  disputes  fre- 
quently arose  between  the  state  treasurer  and  the  railroads 
respecting  the  amount  of  taxes  due,^  and  investigations 
showed  that  mistakes  had  been  made  involving  the  loss  of 
thousands  of  dollars  to  the  state.®     These  conditions  gradu- 

^  Cf.  the  legislative  joint  resolution  of  February  29,  1840. 
'  Message  of  Governor  Newell,  appendix  to  New  Jersey  House  Min- 
utes, i860,  p.  9.     By  a  legislative  joint  resolution  of  Feb.   13,   1849,  a 

253 


AMERICAN  STATE  ADMINISTRATION 

ally  forced  the  conviction  that  existing  methods  of  taxing 
corporations  were  inadequate,  and  that,  in  order  to  make 
corporate  property  bear  its  just  share  of  the  general  tax 
burden,  a  greater  degree  of  central  control  over  the  adminis- 
tration of  the  taxes  upon  such  property  would  be  necessary. 
The  method  formerly  prevalent  of  intrusting  the  assess- 
ment of  corporations  for  taxes  to  the  older  state  fiscal  offi- 
cers or  to  ex  officio  boards  is  still  found  in  a  few  states. 
Thus,  in  Pennsylvania,  the  auditor-general  and  the  state  treas- 
urer and,  in  Delaware,  the  state  treasurer  and  secretary  of 
state  are  charged  with  duties  connected  with  the  assessment 
of  state  corporation  taxes.  In  Iowa  an  ex  officio  board  known 
as  the  state  executive  council,  composed  of  the  governor, 
secretary  of  state,  state  auditor  and  state  treasurer,  assesses 
the  property  of  transportation  corporations.  A  recent  spe- 
cial tax  commission  in  that  state,  however,  has  recommended 
that  this  function  be  transferred  from  the  executive  council 
to  a  permanent  state  tax  commission  to  be  created  for  the 
purpose.'^  The  work  of  an  ex  officio  board,  as  we  have  seen, 
is  apt  to  be  perfunctory.  Many  states,  therefore,  have  from 
time  to  time  established  special  state  central  agencies  for  the 
assessment  of  different  kinds  of  corporations.  Thus,  in  1873, 
New  Jersey  for  the  first  time  created  a  special  organ  with 
the  function  of  making  an  official  valuation  of  the  real  prop- 
erty of  railroad  corporations,  through  the  enactment  of  a 
provision  authorizing  the  governor  to  appoint  a  commissioner 
of  railroad  taxation  for  this  purpose.^  In  1884  a  state  board 
of  assessors  was  created  in  the  same  state,  composed  of  four 
members  appointed  by  the  governor  and  senate,  to  which  was 

committee  was  appointed  to  investigate  the  charge  that  the  Delaware 
&  Raritan  Canal  Co.  and  the  Camden  &  Amboy  R.  R.  Co.  had  de- 
frauded the  state  out  of  large  sums  due  as  taxes. 

'  Report  of  Iowa  Special  Tax  Com^nission,  1912,  p.  75.  See  also 
criticism  of  the  executive  council  in  "Biennial  Message  of  Gov.  Carroll 
of  Iowa,"  1913,  p.  25. 

*  New  Jersey  Session  Laws :  Act  of  April  2,  1873. 

254 


TAXATION  AND  FINANCE 

given  jurisdiction  over  the  assessment  of  all  property  of 
railroad  and  canal  corporations  used  for  railroad  and  canal 
purposes. 

The  movement  towards  the  creation  of  permanent  state 
tax  commissions,  noted  in  the  preceding  chapter,  has  been 
due  in  large  measure  to  the  need  for  special  state  authorities 
to  assess  the  property  of  railroad  and  other  corporations. 
Supervision  over  local  assessments  has  from  time  to  time,  as 
we  have  seen,  been  vested  in  state  central  agencies.  Such 
agencies,  however,  have  usually  been  created  primarily  for 
the  purpose  of  making  original  assessments  and  administering 
special  taxes  upon  particular  classes  of  property  not  suitable 
for  local  assessment.  The  direct  or  original  assessment  by 
state  authorities  of  such  special  forms  of  property  and  the 
levying  of  special  state  taxes  upon  them  generally  developed 
at  an  earlier  date  than  the  supervision  of  local  assessments 
by  permanent  state  tax  commissions.  In  the  large  majority 
of  states,  such  commissions  or  other  state  agencies  now  assess 
for  taxes  the  property  of  transportation  companies,  espe- 
cially railroads. 

Unfortunately,  the  assessment  of  corporate  property  is  not 
always  concentrated  in  the  hands  of  a  single  state  board  or 
official.  Thus,  some  states  provide  for  the  ''assessment  of 
physical  property  and  franchise  value  of  the  same  corpora- 
tions by  separate  boards.  In  Kentucky  the  Railroad  Commis- 
sion assesses  the  physical  property  of  railroads  and  the  State 
Board  of  Valuation  and  Assessment  assesses  their  franchise 
value.  In  Alabama  the  State  Board  of  Assessment  assesses 
certain  physical  property  of  public  service  corporations  and 
the  State  Tax  Commission  assesses  their  franchise  value. 
In  Texas  the  physical  property  of  railroads  is  assessed  by  lOO 
or  more  assessors  acting  independently,  the  intangible  prop- 
erty is  assessed  by  a  state  board,  the  rolling  stock  is  as- 
sessed by  a  single  county  official,  and  the  distribution  of 
rolling  stock  value  is  made  by  a  state  official,  while  the  state 

255 


AMERICAN  STATE  ADMINISTRATION 

rate  for  general  taxation  is  determined  by  a  board  created 
for  that  particular  purpose.  Thus,  a  number  of  boards  and 
ofificials  are  required  to  perform  services  which,  under  a 
centralized  administration,  would  be  more  efficiently  and  eco- 
nomically performed  by  a  single  board  or  official."  ®  The 
tendency,  however,  is  to  consolidate  related  functions  in  the 
hands  of  a  single  state  board.  Thus,  in  New  York,  corpo- 
ration taxes  were  formerly  levied  and  assessed  by  the  state 
comptroller,  but  the  state  board  of  tax  commissioners  valued 
and  assessed  "special  franchises"  of  certain  public  service 
corporations.  In  191 5,  however,  the  latter  body  was  abol- 
ished and  most  of  the  powers  formerly  exercised  by  the  comp- 
troller in  connection  with  the  assessment  of  corporation  taxes 
were  transferred  to  the  newly  created  state  tax  department.^" 
In  Kansas,  under  the  law  of  1907,  the  state  tax  commission 
is  ex  officio  the  state  board  of  railroad  commissioners,  the 
State  board  of  appraisers  and  the  state  board  of  equalization, 
and  is  charged  with  the  assessment  of  the  property  of  all 
inter-local  corporations. 

Not  only  are  the  interests  of  efficiency  and  economy  fur- 
thered through  the  concentration  of  the  various  functions 
connected  with  the  assessment  of  corporations,  but  there 
should  also  be  close  cooperation  between  the  state  authori- 
ties having  respectively  to  do  with  the  taxation  and  the  regu- 
lation of  public  service  corporations.  The  valuation  of  the 
property  of  such  corporations  by  state  railroad  or  public 
utilities  commissions  for  rate-making  purposes  involves  some- 
what different  principles  from  those  entering  into  the  as- 
sessment of  such  property  for  purposes  of  taxation,  but  the 
two  problems  are  in  many  respects  similar,  and  cooperation 
between  the  authorities  dealing  with  them  should  make  for 
greater  effectiveness  both  in  regulation  and  in  taxation. 

"Report  of  U.   S.  Commissioner  of  Corporations  on  the  Taxation 
of  Corporations,  Part  VI,  p.  27. 
**  New  York  Session  Laws,  1915,  Ch.  317. 

256 


TAXATION  AND  FINANCE 

Not  only  do  we  sometimes  find  a  division  of  responsi- 
bility between  different  state  authorities  in  the  assessment 
of  corporate  property,  but  also  a  similar  division  between 
state  and  local  authorities.  Thus,  in  Illinois,  certain  portions 
of  the  real  and  personal  property  of  all  railroads,  except 
the  Illinois  Central  Railroad,  are  assessed  by  local  assessors, 
while  the  track,  rolling  stock  and  "corporate  excess"  are  as- 
sessed by  the  state  board  of  equalization.  General  industrial 
or  business  corporations  are  sometimes  assessed  entirely  by 
local  officers.  Whatever  the  character  of  the  corporation, 
it  should  be  assessed  as  a  unit,  in  order  to  take  into  considera- 
tion those  intangible  elements  of  value,  known  as  franchise 
or  corporate  excess,  which  exist  in  addition  to  the  value  of 
the  physical  property.  In  the  case  of  corporations  whose 
property  is  of  state-wide  extent,  local  assessors  are  mani- 
festly not  in  a  position  to  assess  such  physical  property  to- 
gether with  intangible  elements  of  value  as  a  unit.  This  must 
be  done,  if  at  all,  by  state  agencies,  unless,  indeed,  the  Fed- 
eral Government  should  undertake  it.  The  expansion  of  some 
transportation  and  transmission  systems  to  almost  nation- 
wide extent  points  to  the  need  for  national  assessment.  In 
practice,  however,  the  states  apply  the  unit  rule  to  corpora- 
tions engaged  in  interstate  business  by  determining  the  total 
value  of  the  system,  including  property  both  inside  and  out- 
side the  state,  or  upon  the  basis  of  earnings  upon  business 
transacted  both  inside  and  outside  the  state,  and  levying  a 
tax  upon  the  corporation  measured  by  the  proportion  of  its 
mileage  within  the  state  to  its  entire  length.^^  Even  though 
a  part  of  the  corporation's  earnings  are  from  interstate  com- 

"  The  apportionment  of  mileage  within  and  without  the  state  may  be 
upon  the  basis  of  main  trackage,  or  upon  that  of  all  tracks,  including 
sidings  and  spurs.  The  former  method  has  the  sanction  of  the  Su- 
preme Court  of  the  United  States,  but  the  advantage  appears  to  lie 
with  the  latter.  Apportionment  may  also  be  made  upon  the  basis  of  re- 
ceipts from  business  transacted  within  the  state  as  compared  with  total 
receipts. 


AMERICAN  STATE  ADMINISTRATION 

merce,  such  a  state  tax  apportioned  on  the  basis  of  earnings 
merely  as  a  measure  of  the  relative  value  of  the  company's 
property  within  and  without  the  state,  and  levied  in  lieu  of 
other  taxes,  has  been  upheld  by  the  Supreme  Court  of  the 
United  States  as  not  an  interference  with  the  authority  of 
Congress  over  interstate  commerce.^^ 

It  is  to  be  noted  that  the  assessment  of  inter-local  prop- 
erty by  state  authority  does  not  necessarily  deprive  the  locali- 
ties of  revenue  from  such  sources.  In  many  states  the  tax- 
able values  ascertained  by  state  assessment  are  apportioned 
among  the  local  taxing  districts,  in  proportion  to  the  mileage 
within  each  district,  for  the  computation  and  collection  of  the 
state  tax  and  the  local  general  property  tax.  In  some  states, 
however,  the  taxes  on  inter-local  corporate  property  are  col- 
lected by  the  state,  and  a  portion  of  the  proceeds  distributed 
among  the  local  taxing  districts. ^^ 

In  many  states  the  general  property  tax  at  a  uniform  rate 
is  still  the  method  used  for  taxing  some  kinds  of  corporations. 
Indeed,  the  constitutions  of  many  states  still  require  the  taxa- 
tion by  a  uniform  rule  of  all  property,  both  of  individuals 
and  of  corporations.^*  In  many  states,  however,  the  general 
property  tax  has  been  modified  or  supplemented  by  the  im- 
position of  special  state  taxes  on  corporations,  differing  in 
form  from  the  taxes  laid  on  individuals.     Such  special  cor- 

"  Maine  vs.  Grand  Trunk  Railway,  142  U.  S.,  217.  See  also  C.  C.  C. 
and  St.  L.  Railway  vs.  Backus,  154  U.  S.,  421 ;  Adams  Express  Co.  vs. 
Ohio,  165  U.  S.,  194;  U.  S.  Express  Co.  vs.  Minnesota,  223  U.  S.,  335. 
See  also  Willoughby,  Constitutional  Law  of  the  United  States,  ii,  p. 
723- 

"  In  this  connection  it  may  be  mentioned  that  the  proceeds  of  the 
New  York  Excise  Tax  on  liquor  are  divided  equally  between  the  state 
and  t!ie  localities.  United  States  Census  Bureau :  Taxation  and  Reve- 
nue Systems  of  State  and  Local  Governments,  1914,  p.   166. 

"This  provision  of  the  Ohio  constitution  prevents  the  imposition 
of  corporation  taxes  as  such  in  that  state,  but  excise  taxes  for  the 
privilege  of  carrying  on  business  may  be  laid.  E.  L.  Bogart,  "Recent 
Tax  Reforms  in  Ohio,"  American  Economic  Review,  i,  pp.  505  ff. 

258 


TAXATION  AND  FINANCE 

poration  taxes  are  in  some  states  laid  on  all  corporations  in 
general,  while  in  others  special  taxes  are  levied  upon  particu- 
lar classes  of  corporations,  such  as  banks,  insurance  com- 
panies and  various  kinds  of  transportation  and  transmission 
companies.  Sometimes  the  special  taxes  thus  levied  are  su- 
peradded to  the  general  property  tax;  sometimes  they  are  in 
lieu  of  all  other  taxes. 

The  principal  kinds  of  special  taxes  upon  corporations  are 
taxes  upon  incorporation,  upon  property,  upon  capitalization, 
franchises,  or  corporate  excess,  and  upon  earnings  or  busi- 
ness receipts.  Taxes  or  fees  upon  incorporation  of  domes- 
tic corporations  are  found  in  all  the  states,  and  license  taxes 
are  usually  levied  on  foreign  corporations,  but  this  is  as  far 
as  uniformity  goes.  The  tax  on  the  property  basis  is  the 
oldest  form  and  that  still  found  usually  in  the  Southern  and 
Western  states.  A  few  years  ago  Michigan,  Wisconsin  and 
New  Jersey  made  an  earnest  effort  to  tax  railroads  on  the  ad 
valorem  basis,  and,  at  considerable  expense,  made  a  detailed 
valuation  of  the  property  of  railroads  within  their  respective 
boundaries.  In  order  to  be  successful,  however,  this  method 
requires  continuous  vigor  and  unremitting  vigilance  in  admin- 
istration on  the  part  of  the  state  taxing  authorities,  which 
cannot  always  be  assumed  to  exist  In  most  states. 

In  some  states  railroad  property.  Instead  of  being  taxed 
as  a  unit,  is  split  up  into  different  elements.  Thus,  in  Massa- 
chusetts and  Illinois,  the  Intangible  value  known  as  corpo- 
rate excess  is  taxed  separately  from  the  physical  property. 
The  corporate  excess  is  the  remainder  found  by  deducting  the 
assessed  value  of  the  tangible  property  from  the  equalized 
market  or  actual  value  of  the  capital  stock  plus  bonded  in- 
debtedness.^^ The  bonds  may,  from  one  point  of  view,  be 
regarded  as  a  liability,  but,   for  purposes  of  taxation,  they 

"  In  Massachusetts,  however,  bonded  indebtedness  is  not  included. 
United  States  Bureau  of  the  Census :  Taxation  and  Revenue  Systems 
of  State  and  Local  Governments,  1914.  P-  112. 

259 


AMERICAN  STATE  ADMINISTRATION 

should  rather  be  regarded  as  an  asset.  The  taxation  of  bonds 
to  the  corporation  is  what  is  known  as  "stoppage  at  the 
source,"  and  may  carry  with  it,  as  in  Connecticut,  exemption 
from  taxation  in  the  hands  of  the  holder.  In  Illinois,  how- 
ever, there  is  legally  double  taxation  through  the  attempt 
to  tax  bonds  both  to  the  corporation  and  to  the  holder.^®  The 
value  of  the  corporate  excess  tax  as  a  source  of  revenue  Is 
dependent  upon  the  energy  with  which  it  is  administered  by 
the  state  tax  commissioner  or  board.^'^ 

The  method  of  taxing  corporations  now  generally  favored 
in  states  east  of  the  Mississippi  River  and  north  of  the  Ohio 
is  that  upon  the  basis  of  earnings  or  business  receipts.  Such 
earnings  may  be  considered  theoretically  as  the  measure  of 
the  value  of  the  property  and  the  earnings  tax,  from  this 
point  of  view,  would  be  merely  a  roundabout  method  of  as- 
sessing a  property  tax,  while  avoiding  the  difficulties  of 
making  a  physical  valuation  of  the  property.  In  reality,  how- 
ever, the  earnings  tax  departs  radically  from  the  ad  valorem 
basis  and  uses  income  as  the  test  of  tax-paying  ability.  The 
question  arises,  however,  as  to  whether  net  or  gross  earn- 
ings shall  be  used  as  the  basis  of  the  tax.  Theoretically,  net 
earnings  appear  to  be  the  fairer  test  of  tax-paying  ability, 
for  the  expenses  of  different  corporations  with  the  same  gross 
income  may,  of  course,  vary  greatly.  In  practice,  however, 
a  tax  on  net  earnings  presents  considerable  administrative 
difficulties.  There  is  no  clear-cut,  ready-made  definition  of 
net  earnings  at  hand  and  it  is,  therefore,  not  easy  to  deter- 
mine what  items  should  legitimately  be  deducted  from  gross 

"  See  Report  of  the  U.  S.  Commissioner  of  Corporations  on  the 
Taxation  of  Corporations,  Part  iii,  p.  62. 

"  A  board  which  has  to  be  compelled  by  mandamus  proceedings  to 
assess  the  capital  stock  of  corporations  as  required  by  law  and  its  own 
rules,  as  was  the  State  Board  of  Equalization  of  Illinois,  can  hardly 
be  accused  of  pernicious  activity  in  the  performance  of  its  duties.  See 
Teachers'  Federation  Case,  State  Board  of  Equalization  vs.  People, 
191  III,  529. 

260 


TAXATION  AND  FINANCE 

in  order  to  produce  net  income.  Consequently,  it  might  be 
necessary  for  the  state  to  prescribe  an  elaborate  system  of 
uniform  accounting  for  corporations  doing  business  in  the 
state,  and  maintain  a  watchful  scrutiny  of  such  accounts  in 
order  to  prevent  the  public  treasury  from  being  defrauded 
through  the  juggling  of  expense  items.^^  Such  supervision 
of  corporation  accounts  might  be  well  worth  doing  from  the 
standpoint  of  regulation,  but,  from  the  standpoint  of  taxa- 
tion, the  expense  of  supervision  might  eat  up  a  considerable 
portion  of  the  revenue  from  this  source.  For  these  reasons, 
some  economists  conclude  that  a  gross  earnings  tax  is  the 
only  feasible  recourse,  since  the  amount  of  such  earnings  is 
easily  ascertainable  and  not  readily  subject  to  bookkeeping 
manipulation.^^  Gross  earnings,  however,  may  not  be  a  fair 
test  of  tax-paying  ability  as  between  two  corporations  of  equal 
gross-earnings  capacity,  but  whose  fixed  charges  vary  widely. 
Perhaps  a  more  desirable  plan,  from  some  points  of  view, 
would  be  a  combination  of  net  and  gross  receipts  as  the  basis 
of  taxation.  In  order  to  avoid  some  of  the  administrative 
difficulties  of  imposing  a  net  earnings  tax,  it  has  been  sug- 
gested that  the  principle  embodied  in  the  United  States  in- 
ternal revenue  law  of  1864  might  be  utilized,  viz.,  the  impo- 
sition of  the  tax  upon  the  corporation,  using  the  total  divi- 
dends declared  and  interest  paid  as  the  measure  of  the  tax. 
In  case  there  should  be  little  or  no  dividends  or  interest,  a 
low  gross  earnings  tax  might  also  be  imposed.^"  In  the  taxa- 
tion of  railroads,  a  combination  of  the  gross  and  net  earnings 

"  In  the  case  of  interstate  railroads,  the  state  would  be  saved  the 
necessity  of  prescribing  forms  of  accounts,  as  this  matter  is  already 
attended  to  by  the  Interstate  Commerce  Commission. 

"  C.  C.  Plehn,  "Taxation  of  Public  Service  Corporations,"  in  Pro- 
ceedings of  the  First  National  Conference  on  State  and  Local  Taxa- 
tion, 1907,  p.  642 ;  Report  of  California  Commission  on  Revenue  and 
Taxation,  igo6,  p.  91. 

"  Lawson  Purdy,  "Outline  of  a  Model  System  of  State  and  Local 
Taxation,"  in  Proceedings  of  the  Providence  Conference  for  Good 
City  Government,  1907,  p.  235. 

261 


AMERICAN  STATE  ADMINISTRATION 

tax  has  also  been  proposed  in  the  form  of  a  "flat  rate  tax  on 
gross  operating  revenue,  pUis  a  differential  on  the  margin 
of  difference  between  operating  revenue  and  operating  ex- 
penses.    ^^ 

Ahhough,  as  already  noted,  we  find  in  some  states  a  gen- 
eral corporation  tax,  the  tendency  is  towards  the  division  of 
corporations  into  classes  according  to  the  kind  of  business 
transacted,  and  the  imposition  upon  each  class  of  a  special 
tax  levied  at  a  different  rate  or  in  a  different  manner.  This 
tendency  is  accentuated  by  the  adoption  of  earnings  in  place 
of  property  as  the  basis  of  taxation.  Under  this  system 
even  corporations  falling  into  the  same  general  class  may  be 
broken  up  into  smaller  groups  and  a  different  rate  applied 
to  each.  Thus,  in  Ohio,  public  service  corporations  are  di- 
vided into  subgroups,  railroads  paying  an  annual  excise  tax 
of  four  per  cent,  on  their  interstate  gross  receipts,  while 
express  and  telegraph  companies  pay  two^per  cent.^^  In  ad- 
justing the  rate  of  taxation  on  public  service  corporations,  it 
should  be  borne  in  mind  that  a  rate  which  would  be  confisca- 
tory on  one  corporation  or  class  of  corporations  would  be 
fair  and  reasonable  as  applied  to  another.  Theoretically, 
therefore,  the  best  plan  might  seem  to  be  to  allow  the  rate 
imposed  on  each  class  of  corporations  to  be  fixed  in  the  dis- 
cretion of  the  state  administrative  authorities  having  to  do 
with  taxation.  Such  arbitrary  administrative  power,  how- 
ever, would  scarcely  be  tolerated  in  the  present  state  of  public 
opinion,  and,  under  present  conditions,  this  plan  would  in- 
volve great  danger  of  dragging  the  state  administrative  au- 
thorities into  politics.  Consequently,  reasonable  classification 
of  corporations  for  purposes  of  taxation  should  be  made  by 

"  A.  R.  Foote,  "Taxation  of  Railroads  in  the  United  States,"  in  Pro- 
ceedings of  the  Fifth  Annual  Conference  on  State  and  Local  Taxation, 
191 1,  p.  202. 

"  United  States  Census  Bureau :  Taxation  and  Revenue  Systems  of 
State  and  Local  Governments,  1914,  p.  181. 

262 


TAXATION  AND  FINANCE 

the  legislature  in  so  far  as  the  constitution  permits.  The 
taxes  levied  on  public  service  corporations  are  uniformly- 
shifted  to  the  public  which  they  directly  serve,  and  it  is  much 
more  important,  therefore,  that  such  corporations  should  be 
subject  to  adequate  regulation  as  to  the  character  of  the  serv- 
ice rendered  than  that  they  should  be  subject  to  a  high  rate 
of  taxation. 

The  direct  or  original  assessment  of  corporations  by  state 
authorities  has  tended  to  set  them  off  as  special  sources  of 
state  revenue.  In  some  states  the  amount  of  revenue  derived 
from  corporation  taxes  has  increased  to  such  an  extent  as  to 
constitute  a  very  considerable  proportion  of  the  entire  revenue 
of  the  state.  Thus,  in  1909,  the  proportion  of  state  taxes 
contributed  by  corporations  in  New  Jersey  had  reached 
ninety-two  per  cent.^^  Other  sources  of  revenue,  such  as 
inheritances,  where  a  broad  base  is  desirable  in  order  to  pre- 
vent great  fluctuations  of  yield,  are  also  better  adapted  to 
form  state,  rather  than  local,  objects  of  assessment  and  taxa- 
tion. Furthermore,  corporation  charters  and  the  rights  of 
inheritance  are  derived  from  the  state  and,  consequently,  spe- 
cial duties  are  owed  to  the  state  in  return  for  the  enjoy- 
ment of  these  rights.  On  the  other  hand,  certain  forms  of 
property,  such  as  real  estate,  are  more  suitable  for  local  as- 
sessment and  taxation,  subject  to  a  reasonable  degree  of  cen- 
tral supervision.  These  circumstances  point  to  the  existence 
of  a  natural  distinction  between  the  proper  sources  of  state 
and  local  revenue,  and  explain  a  tendency  discernible  in  many 
states  towards  an  actual  separation  of  such  sources.  In  some 
states,  such  as  New  York,  New  Jersey,  Pennsylvania,  Ver- 
mont, Connecticut  and  California,  the  amount  of  revenue  de- 

^'  Out  of  a  total  revenue  of  $8,637,000,  corporations  paid  into  the 
state  treasury  $6,781,000,  or  78  per  cent.  Deducting  the  receipts  from 
sources  other  than  taxes,  the  proportion  of  state  taxes  contributed  by 
corporations  was  92  per  cent.  Report  of  State  Treasurer,  1909  (N.  J. 
Legislative  Documents,  1909,  i,  p.  17). 

26Z 


AAIERICAN  STATE  ADMINISTRATION 

rived  from  sources  set  aside  as  special  objects  of  state  taxa- 
tion has  been  so  large  as  to  enable  those  states  to  dispense 
almost  entirely  or  altogether  with  any  direct  property  tax  for 
general  state  purposes.-*  In  some  states,  therefore,  segrega- 
tion of  sources  of  revenue  has  actually  been  achieved.  The 
principal  sources  reserved  for  state  taxation  are  banks,  in- 
surance companies,  public  service  corporations,  inheritances 
and  income.  A  proper  separation  should  be  based  upon  an 
allocation  to  the  state  of  those  objects  of  taxation  which 
can  be  more  efficiently  assessed  by  state  than  by  local  au- 
thority and  to  which  may  be  applied  the  method  of  taxation 
on  income  or  earning  capacity,  while  property  taxes  which 
cannot  easily  be  administered  uniformly  over  a  large  area 
should  be  reserved  to  the  localities. 

Separation  was  formerly  regarded  by  some  as  almost  a 
panacea  for  all  the  ills  of  state  and  local  taxation,  but  rela- 
tively less  importance  is  now  attached  to  it.  Whether  it 
should  be  introduced  in  any  particular  state  depends  to  a 
considerable  extent  on  the  conditions  in  that  state.  In  some 
states  it  is  doubtful  whether  there  are  a  sufficient  number 
of  segregateable  sources  to  make  its  introduction  feasible. 
In  some  of  the  states  where  it  has  been  introduced,  such  as 
Vermont  and  California,  there  has  been  complaint  that  the 
sources  of  revenue  allotted  to  the  state  are  not  sufficient  for 
its  needs.^^  Connecticut,  which  had  progressed  toward  sep- 
aration to  such  an  extent  as  to  abandon  a  direct  state  levy, 
found  it  necessary  to  reintroduce  it  in  order  to  gain  sufficient 
revenue.  On  the  other  hand,  it  is  argued  that,  if  the  prop- 
erty of  public  service  corporations  is  reserved  exclusively 
for  state  taxation,  the  localities  will  be  left  without  sufficient 


"The  Pennsylvania  tax  on  the  capital  stock  of  corporations,  which 
in  1909  yielded  nearly  $10,000,000,  is  probably  the  most  productive 
single  tax  levied  in  any  of  the  states. 

^Report  of  Vermont  Commissioner  of  Taxes,  1912,  p.  16;  Biennial 
Message  of  Governor  of  California,  1913,  p.  17. 

264 


TAXATION  AND  FINANCE 

revenue  or  else  the  burden  of  taxation  upon  local  property- 
owners  will  be  disproportionate  in  comparison  with  the  burden 
of  taxation  on  the  property  reserved  to  the  state.  This  ob- 
jection, however,  may  be  overcome  by  a  distribution  of  a 
portion  of  the  proceeds  of  state  taxes  among  the  localities  in 
which  they  are  collected.  This  would  be  a  species  of  equaliza- 
tion. The  advantage  of  separation  lies  not  so  much  in  the 
allocation  of  certain  objects  for  state  taxation  as  in  the  as- 
sessment by  state  authority  of  state-wide  or  inter-local  prop- 
erty. 

Among  the  advantages  which  have  been  urged  in  favor 
of  separation  are  that  it  will  reduce  the  burden  of  local 
taxation  by  abolishing  the  state  surtax  upon  local  property, 
and  that  it  will  secure  greater  equality  of  assessments  as 
between  different  taxing  districts  because  the  incentive  to 
undervalue  property  in  order  to  bear  as  small  a  proportion 
of  the  state  tax  as  possible  will  be  removed.  In  practice, 
however,  neither  of  these  expectations  appears  to  have  been 
realized.  The  state  surtax  is  a  relatively  small  part  of  the 
total  tax  on  local  property,  and  its  abolition  appears  to  have 
little  effect  on  the  tendency  to  undervaluation,  which  may 
be  largely  due  to  other  influences.  Under  the  system  of  sep- 
aration, however,  undervaluation  by  local  assessors  is  no 
longer  of  importance  from  the  standpoint  of  state  finance. 
Separation  renders  equalization  between  counties  unnecessary, 
though  it  may  still  be  required  as  between  individuals  and 
between   taxing  districts  within  the   county. 

An  objection  to  separation  upon  which  considerable  stress 
is  laid  is  that  it  leads  to  extravagance  in  legislative  appropria- 
tions.^® It  is  argued  that  since,  as  a  result  of  separation,  the 
state  derives  the  bulk  of  its  income  from  corporations,  the 
direct  concern  of  the  individual  taxpayer  in  keeping  down 
appropriations  and  in  the  efficient  administration  of  the  state's 
finances  is  lessened.    In  the  virtual  absence  of  a  direct  prop- 

**  Cf.  Third  Report  of  Kansas  Tax  Commission,  1913.  P-  I3- 

265 


AMERICAN  STATE  ADMINISTRATION 

erty  tax  levied  by  the  state,  extravagance  in  the  administra- 
tion of  the  finances  of  the  state  will  not  directly  affect  the 
pocketbook  of  the  individual  property-owner,  and  he  will 
therefore  look  with  comparative  equanimity  upon  such  ex- 
travagance, and  will  not  attempt  to  exercise  any  control  over 
the  state's  finances  in  order  to  check  it.  The  individual  prop- 
erty-owner, however,  would  not  in  any  event  be  able  to  exer- 
cise, with  continuous  effectiveness,  a  control  over  the  financial 
officers  of  the  state,  so  as  to  prevent  wastefulness  and  in- 
efficiency in  the  collection  of  state  taxes  and  extravagance 
in  the  spending  of  the  public  funds.  Such  control,  in  order 
to  be  continuously  effective,  ought  to  be  exercised  by  executive 
officers  who  are  themselves  responsible,  either  mediately  or 
immediately,  to  the  individual  taxpayers.  It  may  be  shown 
that  the  largest  expenditures  are  found  in  those  states  in 
which  separation  is  farthest  advanced,  but  this  does  not  neces- 
sarily prove  a  causal  connection  between  separation  and  in- 
creased expenditures,  for  the  latter  may  be  due  to  other 
causes. ^^ 

Two  further  objections  to  separation  may  be  considered, 
viz. :  that  it  produces  inelasticity  in  state  revenues,  and  that 
it  leads  to  decentralization  in  tax  administration.  Under  the 
general  property  tax  for  state  purposes,  the  varying  revenue 
needs  of  the  state  could  be  met  by  raising  or  lowering  the 
tax  rate.  Where  separation  has  been  introduced,  however, 
the  revenues  of  the  state  will  not  necessarily  coincide  with  its 
legitimate  needs,  but  the  tax  rate  upon  most  of  the  sources 
reserved  for  state  use  cannot  usually  be  raised  or  lowered 
frequently  without  tending  to  unsettle  business.  This  objec- 
tion may  be  met  by  finding  additional  sources  of  state  reve- 

^  This  fallacy  is  apparently  committed  by  Prof.  T.  S.  Adams  in 
his  article  on  "Separation  of  State  and  Local  Revenues,"  Annals  of 
the  American  Academy  of  Political  and  Social  Science,  March,  191S. 
pp.  135-136.  It  should  also  be  noted  that  large  expenditures  are  not 
necessarily  evidence  of  extravagance. 

266 


TAXATION  AND  FINANCE 

nue,  by  varying  the  rate  on  some  of  the  existing  sources,  by 
making  the  state  tax  rate  high  enough  to  provide  a  surplus 
for  unforseen  revenue  needs,  or  by  apportioning  an  additional 
tax  upon  the  localities  in  proportion  to  their  revenues  or  ex- 
penditures.^^ If  these  measures  are  not  sufficient  to  pro- 
duce an  elastic  state  revenue,  then  separation  should  be 
at  least  partially  abandoned,  for  the  activities  of  the  state 
should  not  be  subject  to  arbitrary  enlargement  or  restriction 
in  accordance  with  the  proceeds  of  an  inelastic  revenue 
base. 

The  objection  to  separation  most  frequently  urged,  how- 
ever, is  that  it  tends  towards  financial  decentralization  and 
disintegration.  This  objection  does  not,  of  course,  apply  to 
taxation  upon  those  objects  reserved  for  state  use,  for  here 
centralization  and  separation  have  proceeded  pari  passu.^^ 
But  with  respect  to  the  administration  of  local  taxation,  it 
is  feared  by  many  that  separation  will  lead  to  laxness  of  cen- 
tral control.  Local  taxing  districts  will  largely  manage  their 
own  affairs,  local  assessors  will  act  independently  of  outside 
control  and  the  result  will  be  chaos  in  local  tax  administra- 
tion. Theoretically,  there  would  seem  to  be  no  necessary  in- 
compatibility between  separation  and  centralization  in  tax 
administration.  "The  relegation  of  the  general  property  tax," 
says  Professor  Seligman,  "to  the  local  divisions  would  not  in 
any  way  conflict  with  the  principle  of  effective  central  control 
over  local  assessments."  ^°  Moreover,  in  practice,  some  de- 
gree of  centralization  is  usually  found  combined  with  separa- 
tion in  the  same  tax  system.  It  must  be  admitted,  however, 
that  separation  does  not  operate  directly  to  strengthen  cen- 
tral control  over  local  assessments  and  it  may  tend  to  weaken 

'*  E.  R.  A.  Seligman,  "Separation  of  State  and  Local  Revenues," 
First  National  Conference  on  State  and  Local  Taxation  (1907),  p.  502. 

""Cf.  S.  P.  Orth,  "The  Centralization  of  Administration  in  Ohio," 
Columbia  University  Studies,  xvi,  p.  445. 

^"Essays  in  Taxation,  8th  ed.,  p.  368. 

267 


AMERICAN  STATE  ADMINISTRATION 

or  make  it  more  difficult.  Assuming  that  this  would  be  the 
result,  it  may  be  answered  that,  even  so,  the  inefficiency  and 
inequalities  in  local  assessments  arising  from  lack  of  central 
control  become,  with  the  adoption  of  separation,  matters  of 
little  consequence  from  the  standpoint  of  state  finance,  for 
the  local  assessments  are,  of  course,  no  longer  used  as  a  base 
of  state  taxation.  If  it  be  thought,  however,  that  the  state 
cannot  so  easily  throw  aside  its  responsibility  for  securing 
efficiency  in  local  tax  methods,  the  state  may  reintroduce  a 
small  direct  tax  on  the  basis  of  local  assessments.  This 
would  not  be  an  abandonment  but  only  a  modification  of  the 
principle  of  separation.^^ 

Separation  may  be  considered  as  a  method  of  evading  the 
problem  of  securing  efficiency  in  local  tax  methods  and  of 
avoiding  some  of  the  difficulties  which  arise  from  inequali- 
ties and  undervaluation  in  local  assessments.  Another  method 
of  accomplishing  the  same  result  is  not  to  separate  the  sources 
of  state  and  local  revenue,  but  to  discard  the  valuations  made 
by  local  assessors  as  the  basis  upon  which  the  state  tax  is 
levied.  This  necessitates  the  finding  of  some  other  basis  for 
the  state  levy.  Various  substitutes  might  be  suggested,  but 
the  only  one  which  is  of  practical  importance  is  that  of  local 
revenues  or  expenditures.  This  plan  involves  the  apportion- 
ment of  the  amount  desired  to  be  raised  for  state  purposes 
among  the  several  counties  or  towns  in  proportion  to  the  re- 
spective amounts  of  county  or  town  revenues  or  expenditures. 
This  plan  was  first  seriously  considered  in  Oregon,  where, 
in  1907,  an  act  was  passed  providing  for  the  apportionment 
of  the  state  tax  according  to  expenditures  of  counties.  This 
act,  however,  was  set  aside  by  the  courts  and  the  plan  did 
not  go  into  operation  in  that  state.  Two  peculiarities  of  the 
Oregon  plan  were  that,  in  determining  the  basis  of  apportion- 

'^  Even  those  who  vehemently  oppose  separation  in  general  admit 
that  a  partial  separation  is  undoubtedly  advantageous.  C.  J.  Bullock, 
in  Proceedings  of  the  Washington  State  Tax  Conference,  1914,  p.  229. 

268 


TAXATION  AND  FINANCE 

ment,  certain  extraordinary  classes  of  county  expenditures 
were  excluded  from  consideration,  and,  secondly,  the  expendi- 
tures merely  of  the  counties  and  not  of  the  local  political 
subdivisions  within  the  counties  were  taken  as  the  basis. 
More  recently,  in  19 15,  Connecticut  has  adopted  a  somewhat 
similar  plan.  The  legislature  of  that  state  provided  by  reso- 
lution that  $i,75o,ocxD  should  be  levied  on  the  towns  for  each 
of  the  two  succeeding  years,  which  amount  should  be  ap- 
portioned to  the  towns  "in  the  proportion  which  the  total 
revenue  received  yearly  from  direct  taxation  in  each  town, 
including  that  received  by  all  taxing  districts  therein,  as  aver- 
aged for  the  three  fiscal  years  next  preceding,  is  to  the  total 
revenue  so  received  for  such  time  as  averaged  in  all  the 
towns."  ^^ 

By  the  adoption  of  this  plan  the  state  dispenses  with  the 
ordinary  method  of  apportionment  according  to  valuation  by 
local  assessors,  which  everywhere  is  found  to  breed  inequality 
between  taxing  districts,  and  substitutes  for  it  a  basis  of  ap- 
portionment which,  it  is  thought,  will  more  nearly  approxi- 
mate the  tax-paying  abilities  of  the  respective  districts.  To 
this  plan  the  same  objection  may  be  urged  as  to  that  of  sep- 
aration, viz.,  that  it  tends  towards  decentralization  by  re- 
leasing the  state  from  direct  concern  in  the  efficiency  of  local 
assessments.  Furthermore,  it  may  be  urged  that  it  will  have 
a  deterrent  efifect  on  local  expenditures  without  discrimination 
as  to  whether  they  are  wise  or  not.  This  disadvantage,  how- 
ever, is  counterbalanced  by  the  tendency  which  the  adoption  of 
the  plan  creates  towards  economy  in  local  expenditures. 
Moreover,  the  effect  upon  local  expenditures  may  be  mini- 
mized by  using  the  apportionment-by-expenditure  plan  merely 
as  an  emergency  or  deficiency  tax  when  the  state's  ordinary 
revenues  from  special  taxes  are  not  sufficient.  A  by-product 
resulting  from  this  plan  would  be  the  collection  of  financial 
statistics  of  local  political  divisions,  the  publication  of  which 

"  Connecticut   Public  Acts,  1915,   Ch.  257. 

269 


AMERICAN  STATE  ADMINISTRATION 

in  comparative   form  would  doubtless  help  to  stimulate  the 
local  units  to  put  or  keep  their  finances  in  better  shape.^^ 

Prominent  among  existing  movements  for  tax  reform  in 
the  states  is  that  for  a  departure  from  the  uniform  rule  of 
the  general  property  tax  through  a  classification  of  the  ob- 
jects of  taxation.  In  the  first  part  of  the  nineteenth  century 
when  property  was  largely  tangible  and  homogeneous,  there 
was  little  need  for  classification,  and  the  uniform  rule  seemed 
to  be  just  and  equitable.  Unfortunately,  this  rule  was  crys- 
tallized in  many  of  the  constitutions,  so  that,  with  certain 
limited  exemptions,  the  legislature  has  no  alternative  but  to 
levy  taxes  at  the  same  rate  on  all  classes  of  property.  Some 
constitutions,  however,  usually  those  adopted  before  the  mid- 
dle of  the  nineteenth  century,  do  not  forbid  classification; 
while  others,  beginning  with  that  of  Pennsylvania,  in  1873, 
specifically  authorize  the  levying  of  taxes  which  shall  be  uni- 
form only  upon  the  same  class.  The  National  Tax  Associa- 
tion has  advocated  the  abolition  of  constitutional  restraints 
upon  the  reasonable  classification  of  property  and  has  recom- 
mended the  following  as  the  sole  provision  relating  to  taxa- 
tion which  should  go  into  the  constitution:  "The  power  of 
taxation  shall  never  be  surrendered,  suspended,  or  contracted 
away.  All  taxes  shall  be  uniform  upon  the  same  class  of 
property  within  the  territorial  limits  of  the  authority  levying 
the  tax,  and  shall  be  levied  and  collected  for  public  pur- 
poses only."  ^*  Provisions  substantially  similar  to  this  have 
been  adopted  in  the  constitutions  of  Minnesota,  Arizona,  Ken- 
tucky, Maryland,  Massachusetts,  and  other  states.  Consti- 
tutional provisions  permitting  classification  do  not  prescribe 
any  particular  method  of  classification.     If  the  appropriation 

'^  See  Report  of  the  Committee  of  the  National  Municipal  League  on 
Taxation,  Proceedings  of  the  Providence  Conference  for  Good  City 
Government,  1907,  pp.  249-250. 

^Proceedings  of  the  Fifth  National  Conference  on  State  and  Local 
Taxation,  191 1,  p.  453. 

270 


TAXATION  AND  FINANCE 

of  public  funds  can  safely  be  intrusted  to  the  legislature,  then 
that  body  may  properly  be  given  some  discretion  in  determin- 
ing the  methods  of  raising  revenue. 

The  design  of  classification  is  two- fold :  first,  to  bring  about 
real  equity  where  only  formal  equality  now  exists,  and,  sec- 
ondly, to  increase  the  productivity  of  taxes  on  certain  classes 
of  property.  In  general,  it  is  an  effort  to  adjust  the  rate 
and  manner  of  taxation  to  the  economic  characteristics  of 
the  property  taxed.  This  adjustment  may  take  different 
forms.  In  the  first  place,  it  may  take  the  form  of  the  assess- 
ment of  different  kinds  of  property  at  different  ratios  of  as- 
sessments to  full  value.  This  method  has  been  adopted  in  Min- 
nesota, where  all  taxable  property  is  divided  into  four  groups, 
and  each  group  is  assessed  at  a  diff'erent  fraction  of  full  value, 
and  the  same  rate  of  taxation  is  then  levied  upon  each  group. 
In  the  second  place,  different  rates  of  taxation  may  be  levied 
upon  different  classes  of  property,  or  some  classes  may  be 
exempted  from  taxation  altogether.  The  classification  should 
not,  of  course,  be  an  arbitrary  one,  but  should  be  based  upon 
a  genuine  distinction,  and  a  uniform  method  and  rate  should 
be  applied  to  all  objects  properly  falling  within  the  same  class. 
The  economic  characteristics  of  certain  kinds  of  property, 
such  as  mines,  forests,  household  goods,  money,  credits,  and 
other  intangible  personalty  naturally  place  them  in  separate 
categories. 

One  of  the  best  known  examples  of  the  beneficial  results 
of  reasonable  classification  is  found  in  the  low  tax  levied  on 
certain  forms  of  securities  in  Maryland,  Pennsylvania  and 
other  states.  This  form  of  property  cannot  stand  the  high 
rate  usually  levied  under  the  general  ad  valorem  system,  and 
consequently  most  of  it  stays  in  hiding  and  escapes  the  as- 
sessor. In  1896,  the  value  of  such  securities  assessed  for 
taxes  in  Baltimore  was  only  about  $6,000,000.  In  that  year 
a  low  tax  of  about  four  and  one-half  mills  on  the  dollar  was 
levied  on  this  class  of  securities,  with  the  result  that  their 

271 


AMERICAN  STATE  ADMINISTRATION 

assessed  valuation  has  steadily  increased,  until  in  191 5  it 
amounted  to  more  than  $208,000,000.^^  After  making  due  al- 
lowance for  natural  increase  there  still  remains  a  consider- 
able margin  which  represents  the  efficiency  of  classification 
in  reaching  this  class  of  property,  A  similar  result  was 
reached  in  Minnesota,  where,  in  191 1,  a  low  tax  of  three 
mills  on  the  dollar  was  levied  on  money  and  credits.  The 
revenue  from  this  source  thereupon  increased  from  $379,000 
in  1910  to  $590,000  in  1914.  The  state  of  Washington  has 
gone  still  further,  and  exempted  money  and  credits  from 
taxation  altogether.  In  a  number  of  states  mortgages  are 
exempted  from  taxation,  and,  when  taxed  in  others,  it  is  usu- 
ally found  that  the  burden  of  the  tax  rests  upon  the  mort- 
gagor and  not  upon  the  mortgagee,  the  amount  of  the  tax 
being  included  in  the  interest  charge.  This  amounts  in  effect 
to  double  taxation  upon  the  borrower  in  those  states  where 
no  deduction  for  indebtedness  is  allowed. 

In  order  to  avoid  some  of  the  difficulties  experienced  in 
the  taxation  of  mortgages.  New  York  adopted  in  1906  the 
plan  of  levying  a  recording  tax  upon  mortgages  at  a  low  rate. 
As  originally  enacted,  the  law  provided  that  the  tax  was  to 
be  paid  once  for  all  at  the  time  of  recordation  and  the  mort- 
gage was  thereafter  exempt,  no  matter  for  how  long  a  time 
it  might  run.  New  York  has  also  provided  for  the  exemption 
of  secured  debts  after  the  initial  payment  of  a  small  tax. 
The  New  York  mortgage-recording  and  secured-debts  taxes 
have  been  copied  in  other  states,  but  in  the  latter  states  the 
better  plan  is  usually  followed  of  adjusting  the  amount  of 
the  tax  to  the  duration  of  the  mortgage  or  debt. 

These  taxes  are  examples  of  new  special  taxes  which  the 
states  have  recently  adopted  as  independent  sources  of  reve- 
nue.    The  most  widespread  example,  however,  of  such  spe- 


3S 


'A.  C.  Girdwood,  "Taxation  of  Intangible  Personal  Property  in 
Maryland,"  in  Addresses  and  Proceedings  of  the  Fifth  New  York 
State  Conference  on  Taxation,  1915.  P-  264. 

272 


TAXATION  AND  FINANCE 

cial  state  taxes  is  the  inheritance  tax,  which  has  now  been 
adopted  in  about  forty  states.  In  most  of  these  states  the 
tax  is  a  graduated  or  progressive  tax  and  rests  upon  the  es- 
tates of  decedents  passing  both  to  direct  and  to  collateral 
heirs.  In  other  states,  however,  collateral  inheritances  only- 
are  taxed.  In  191 3  the  total  yield  from  this  tax  in  all  the 
states  having  it  was  only  about  $26,000,000,  or  less  than  one- 
fifth  of  the  amount  that  Great  Britain  raised  from  this  tax 
in  the  same  year.  The  scantiness  of  yield  is  due  in  part  to  the 
low  rate,  partly  to  the  high  exemptions,  and  partly  to  difficul- 
ties of  administration  in  connection  with  the  estates  of  non- 
resident decedents. 

Many  of  the  new  special  state  taxes,  such  as  the  low  tax 
on  intangible  wealth,  represent  an  attempt  to  reach  the  in- 
come of  property  as  the  basis  of  taxation  rather  than  the 
property  itself.  Theoretically,  a  state  income  tax  is  the 
least  objectionable  form  of  state  taxation,  for  income  is  usu- 
ally a  better  test  of  tax-paying  ability  than  property.  In 
practice,  however,  the  state  income  tax  has  hitherto  been  an 
almost  uniform  failure.  A  number  of  American  states  have 
at  various  times  levied  income  taxes,  but  the  yield  therefrom 
has  in  almost  all  cases  been  negligible.^''  The  tax  was  op- 
posed on  the  ground  that  it  was  too  inquisitorial,  but  the 
principal  difficulties  in  the  administration  of  the  tax  have 
been  due  to  the  lack  of  central  control  of  the  assessments  and 
to  limitations  of  state  jurisdiction  with  respect  to  incomes  of 
non-residents  and  incomes  derived  from  extra-state  sources. 

The  verdict  that  the  income  tax,  while  good  theoretically, 
is  impossible  practically,  must  be  revised  in  view  of  the  suc- 
cessful operation  of  the  Wisconsin  income  tax  law  of  1911.^" 
Among  the  principal  features  of  this  law  are  that  the  tax  is 

**  See  D.  O.  Kinsman,  "The  Income  Tax  in  the  Commonwealths  of 
the  United  States,"  Publications  of  the  American  Economic  Associa- 
tion, November,  1903. 

*^  Wisconsin  Session  Laws,  191 1,  Ch.  658. 

273 


AMERICAN  STATE  ADMINISTRATION 

levied  upon  both  individuals  and  corporations,  and  that  it  was 
introduced  as  a  substitute  for  the  tax  on  intangible  personalty. 
Taxes  upon  tangible  personalty  may  be  deducted  from  the 
amount  of  the  income  tax  to  be  paid.  The  most  interesting 
feature  of  the  law,  however,  and  that  which  distinguishes 
it  from  other  state  income  tax  laws,  is  the  provision  for  cen- 
tral control  of  assessments.  The  administration  of  the  law 
is  placed  in  the  hands  of  the  state  tax  commission,  which 
appoints,  subject  to  civil  service  regulations,  the  income  tax 
assessors  in  each  of  the  forty-one  assessment  districts  into 
which  the  state  is  divided.  It  is  this  feature  of  centralized 
administration  which  has  saved  this  law  from  the  same  fate 
as  has  befallen  the  other  state  income  tax  laws.  In  the  first 
year  of  the  administration  of  the  law  it  yielded  a  revenue  of 
about  three  and  one-half  million  dollars.  A  large  part  of 
the  proceeds  is  distributed  among  the  counties  and  local  tax- 
ing districts.  The  enactment  of  the  Federal  income  tax  law 
of  1913,  instead  of  interfering  with  the  operation  of  state 
income  tax  laws,  may  strengthen  their  enforcement  by  making 
available  for  the  use  of  state  authorities  the  information  con- 
tained in  the  schedules  filed  under  the  Federal  law.^^  It  may 
be  doubted,  however,  whether  it  is  worth  while  to  maintain 
two  expensive  organizations  or  administrative  staffs  for  the 
performance  of  the  same  function.  If  the  United  States 
Government  can  administer  an  income  tax  more  efficiently 
than  the  states,  the  wiser  plan  might  be  for  the  national  au- 
thorities to  assume  the  administration  of  the  entire  income 
tax  system,  a  part  of  the  proceeds  to  be  apportioned  to  the 
states.  The  same  consideration  applies  to  the  inheritance 
tax,  should  the  United  States  Government  decide  to  levy  one. 

**  Connecticut  has  enacted  an  income  tax  on  corporations,  to  be  based 
on  the  returns  required  by  the  Federal  Government.  Conn.  Pub.  Laws, 
1915,  Ch.  292.  A  New  York  tax  commission  has  proposed  (1916)  an 
income  tax  to  be  assessed  by  the  state  and  the  proceeds  to  be  dis- 
tributed to  the  local  districts  in  proportion  to  the  assessed  value  of 
real  estate  locally  assessed. 

274 


TAXATION  AND  FINANCE 

Many  of  the  difficulties  experienced  in  the  operation  of 
state  tax  laws  are  due  to  the  fact  that  the  state  is  attempting 
to  tax  objects  which  are  interstate  or  nation-wide  in  character. 
The  economic  life  of  the  nation  is  no  respecter  of  state  lines. 
Railroad  systems  and  large  industrial  corporations  operate 
in  many  states.  This  suggests  the  need  for  cooperation  in 
tax  matters  between  the  various  states  concerned,  or,  better 
still,  cooperation  between  the  states  and  the  Federal  Govern- 
ment. The  latter  government  is  better  fitted  to  administer 
efficiently  a  number  of  taxes  now  levied  by  states,  such  as 
income,  inheritance,  and  corporation  taxes.  Just  as  obvious 
advantages  result  from  state  assessment  of  inter-local  prop- 
erty, so  similar  advantages  would  be  derived  from  national 
assessment  of  interstate  property.  Since  the  states,  however, 
could  not  well  afford  to  be  deprived  entirely  of  the  revenue 
from  these  sources,  a  portion  at  least  of  the  proceeds  would 
have  to  be  distributed  among  them.  "If  the  national  gov- 
ernment were  to  levy  both  a  direct  and  a  collateral  inheritance 
tax  at  even  one-half  the  rates  found  in  England  before  the 
war,  and  if  it  were  to  return  forty  per  cent  to  the  states, 
not  only  would  the  national  government  have  an  additional 
hundred  milHons  of  revenue,  but  the  states  would  receive  two 
or  three  times  as  much  as  they  are  now  able  to  secure  from 
this  source.  In  other  words,  a  national  inheritance  tax, 
with  an  equitable  division  of  the  yield,  would  benefit  state 
and  nation  alike  and  would  go  far  to  solve  our  most  pressing 
fiscal  problem."  ^^ 

State  Supervision  of  Local  Accounts. — We  have  seen  that, 
inasmuch  as  the  state  general  property  tax  is  tacked  on  to 
the  local  taxes,  the  states  have  a  direct  interest  in  local  tax 

**  E.  R.  A.  Seligman,  "A  National  Inheritance  Tax,"  New  Republic, 
March  25,  1916,  p.  213.  See  also  the  same  author's  articles  on  "The 
Relations  of  State  and  Federal  Finance,"  in  Addresses  and  Proceed- 
ings of  the  Third  International  Conference  on  State  and  Local  Taxa- 
tion, 1909,  p.  213,  and  in  North  American  Review,  November,  1909. 

275 


AMERICAN  STATE  ADMINISTRATION 

administration  and  have  therefore  created  some  degree  of 
central  supervision  over  local  assessments.  The  states  also 
have  an  interest  in  the  accuracy  of  local  accounts  and  in  the 
efficiency  of  local  financial  methods.  Numerous  cases  of  fraud 
and  embezzlement  in  the  management  of  public  funds  by 
local  financial  officers  have  occurred  from  time  to  time  in 
different  states.  To  these  conditions  the  state  government 
cannot  be  indifferent,  not  only  because  of  its  general  interest 
in  all  that  affects  the  financial  well-being  of  the  local  gov- 
ernments vv^ithin  its  borders,  but  also  because  lax,  inefficient 
or  fraudulent  methods  on  the  part  of  local  financial  officers 
may  adversely  affect  the  state's  own  revenue.  Some  taxes, 
particularly  the  state  surtax  on  the  general  property  basis 
and  also  usually  the  inheritance  tax,  are  collected  in  the  first 
instance  by  local  officials  and  pass  through  the  hands  of  county 
officials,  by  whom  they  are  transmitted  to  the  state  treasury. 
State  audit  of  local  accounts,  therefore,  is  desirable  in  order 
to  safeguard  the  interests  of  the  state  itself. 

The  original,  and  still  largely  prevalent,  method  of  exer- 
cising state  control  over  local  finances  was  through  the  mere 
enactment  of  constitutional  and  statutory  provisions,  without 
the  use  of  administrative  supervision.  This  is  still  generally 
true  in  respect  to  the  incurring  of  debt  by  local  governments. 
In  some  states,  however,  such  as  Texas,  Massachusetts,  and 
Oklahoma,  some  degree  of  administrative  supervision  over 
local  debts  is  exercised  through  the  provision  requiring  that 
cities  issuing  bonds  shall  have  them  certified  by  the  state  au- 
ditor or  other  state  bureau  or  official.  Within  the  last  few 
decades,  moreover,  state  administrative  supervision  over  local 
accounts  has  developed  in  many  states.'*"     Such  supervision 


"The  history  of  this  movement  is  traced  by  J.  A.  Fairlie  in  his 
Local  Government  in  Counties,  Towns  and  Villages,  pp.  255-263.  See 
also  F.  N.  Stacy,  State  Supervision  of  Public  Accounting  in  Minnesota, 
Proceedings  of  the  Minnesota  Academy  of  Social  Sciences,  1909.  ">» 
pp.  136-148. 

276 


TAXATION  AND  FINANCE 

is  sometimes  exercised  by  the  existing  state  fiscal  officers, 
such  as  the  comptroller  or  auditor;  sometimes  a  special  offi- 
cer or  board  is  created  for  the  purpose.  The  powers  of  the 
state  administrative  authority  vary  considerably.  Sometimes 
they  are  very  slight,  consisting  merely  in  the  function  of  rec- 
ommending a  system  of  uniform  accounting  when  requested 
to  do  so,  or  of  examining  the  local  accounts  and  making  sug- 
gestions as  to  desirable  changes  in  form  or  method,  or  of 
receiving  reports  and  publishing  them.  In  other  cases,  how- 
ever, the  power  of  the  state  bureau  or  department  is  man- 
datory. In  Massachusetts  the  idea  has  been  followed  that 
the  initiative  should  come  as  far  as  possible  from  the  locali- 
ties, and  that  the  function  of  the  state  is  merely  to  serve  as  a 
central  reservoir  or  clearing-house  of  information  in  regard 
to  the  financial  statistics  of  the  local  subdivisions.*^  In  1906 
the  Bureau  of  Statistics  of  that  state  was  authorized  to  collect 
and  publish  in  understandable  form  the  financial  reports  of 
such  subdivisions,  and  in  1910  the  further  power  was  given 
of  auditing  local  accounts  and  installing  accounting  systems, 
but  only  upon  petition  of  the  city  or  town  concerned.  This 
power  is  also  possessed  by  state  authorities  in  other  states. 
The  New  York  state  comptroller,  upon  application  from  local 
units  of  government,  may  install  therein  a  uniform  system  of 
accounts.  The  Wisconsin  Tax  Commission  is  also  author- 
ized to  collect  financial  reports  from  the  local  political  sub- 
divisions of  the  state  and  may,  upon  application  by  any  such 
local  unit,  install  a  system  of  uniform  accounting,  which  is 
thereupon  binding  upon  the  local  government.  Such  account- 
ing systems  have  now  been  installed  in  about  one-third  of  the 
counties  and  in  a  number  of  cities,  towns  and  villages.    The 


"  Cf.  C.  F.  Gettemy,  "The  Function  of  the  State  in  Relation  to  the 
Statistics  of  Municipal  Finances,"  Publications  of  the  American  Sta- 
tistical Association,  1912,  xiii,  p.  348  ff.  It  is  to  be  noted  that  the 
function  of  collecting  and  disseminating  information  is  also  performed 
by  the  United  States  Census  Bureau,  which  publishes  at  intervals  the 
financial  statistics  of  state  and  local  governments. 

277 


AMERICAN  STATE  ADMINISTRATION 

Commission  may  also  audit  the  accounts  of  any  local  sub- 
division upon  its  own  initiative.  The  expense  of  the  audit  or 
of  the  installation  of  accounts  rests  as  a  charge  upon  the  local 
unit  of  government.  The  operations  of  the  Wisconsin  Com- 
mission have  disclosed  a  number  of  irregularities  and  defalca- 
tions not  before  known  to  the  public,  and  have  doubtless 
prevented  others  from  occurring.  In  some  states,  such  as 
Ohio,  Indiana,  and  the  Pacific  Coast  states,  more  mandatory 
powers  of  control  over  local  accounts  are  vested  in  state  au- 
thorities. The  Ohio  Bureau  of  Inspection  and  Supervision 
of  Public  Offices,  created  in  1902,  and  consisting  of  the  audi- 
tor of  state  and  three  deputies,  has  power  to  formulate,  pre- 
scribe and  install  a  uniform  system  of  accounting  and  report- 
ing for  all  public  offices  and  to  make  periodical  examinations 
of  the  financial  affairs  of  such  offices.'*^ 

State  Accounting  Methods. — In  many  respects  the  methods 
of  keeping  state  accounts  are  less  advanced  than  in  the  case 
of  private  and  municipal  corporations.  The  public  funds  are 
in  charge  of  the  state  fiscal  officers,  the  state  treasurer  and 
the  auditor  or  comptroller,  who  are  provided  for  in  the  con- 
stitution, selected  usually  by  popular  vote,  and  frequently  have 
no  special  expert  qualifications  for  the  performance  of  their 
duties.  The  methods  of  handling  the  public  funds  still  show 
in  many  states  traces  of  the  primitive  conditions  which  ex- 
isted before  the  middle  of  the  nineteenth  century.  Some  of 
the  state  revenues  are  usually  collected  by  local  officers  and 
transmitted  by  the  county  collector  or  treasurer  to  the  state 
treasury.  The  expense  of  collecting  the  revenue  in  this  way 
sometimes  consumes  a  large  percentage  of  the  gross  proceeds. 
Greater  and   more  effective   state  administrative  supervision 

"For  further  information  regarding  state  supervision  of  local  ac- 
counts, see  the  table  published  in  the  National  Municipal  Review,  ii, 
pp.  522-525 ;  and  J.  E.  Boyle,  "County  Budgets :  Economy  and  Efficiency 
in  Expenditures,"  in  Annals  of  the  American  Academy  of  Political  and 
Social  Science,  xlvii,  pp.  199,  203. 

278 


TAXATION  AND  FINANCE 

over  the  records  and  accounts  of  local  officers  intrusted  with 
the  collection  of  state  taxes  is  needed  in  the  interests  of  econ- 
omy and  efficiency.  Other  state  revenues  are  paid  directly 
to  state  officers  charged  with  receiving  them.  They  do  not, 
however,  in  all  cases  go  directly  into  the  state  treasury.  Dif- 
ferent state  officers,  having  primarily  other  than  financial 
duties  to  perform,  such  as  the  secretary  of  state,  the  insur- 
ance commissioner,  the  attorney-general  and  various  examin- 
ing and  licensing  boards,  frequently  have  financial  functions 
also  through  their  power  to  collect  certain  state  taxes  or  to 
collect  fees  for  the  services  which  they  perform.  In  some 
states,  such  as  Illinois,  all  such  fees  are  required  by  law  to  be 
paid  into  the  state  treasury,  but  in  other  states  they  are  util- 
ized in  paying  the  expenses  of  maintaining  and  operating  the 
respective  offices,  and  only  the  remainder,  if  any,  is  paid  into 
the  state  treasury.  The  revenues  received  from  various  sources 
are  covered  into  the  treasury  and  placed  either  in  a  general 
fund  or  in  special  funds.  When  placed  in  a  special  fund, 
the  money  cannot  ordinarily  be  used  for  any  other  purpose, 
even  though  there  may  be  a  surplus  in  one  fund  and  a  defi- 
ciency in  another.*^  When  the  amount  of  the  appropriations 
for  a  given  fiscal  period  has  been  determined,  and  the  amount 
of  the  revenue  receivable  by  the  state  from  all  sources  ex- 
cept taxes  (i.  e.,  the  direct  property  tax)  is  approximately 
known,  the  tax  rate  may  then  be  determined  by  mathematical 
computation.  In  some  states  the  rate  is  determined  by  law, 
but  in  others  by  a  state  board  or  official.  In  Illinois,  for 
example,  this  board  consists  of  the  governor,  state  treasurer, 
and  auditor  of  public  accounts. 

The  custody  of  state  funds  is  controlled  in  the  various  states 

"  "The  existence  of  funds  separate  from  the  general  fund,  and  the 
commitment  of  certain  revenues  of  the  state  to  specific  classes  of 
expenditures  is  a  confusing  and  objectionable  feature  of  state  finance." 
See  "Annual  Message  of  Governor  Whitman  of  New  York,"  1916,  p.  8; 
"Message  of  Governor  Withycombe  of  Oregon,"  1915. 

279 


AMERICAN  STATE  ADMINISTRATION 

in  accordance  with  one  or  both  of  two  different  plans  or  meth- 
ods, known  as  the  independent  treasury  or  vault  system  and 
the  depository  system.  Under  the  former,  the  funds  of  the 
state  are  kept  in  its  own  vaults,  while,  under  the  latter,  they 
are  kept  in  certain  designated  banks.  During  the  first  half 
of  the  nineteenth  century  the  independent  treasury  system 
was  the  more  common  one,  but  of  late  years  it  has  been  aban- 
doned in  most  of  the  states.  An  investigation  conducted  in 
1906  by  the  Washington  State  Board  of  Tax  Commissioners 
showed  that,  at  that  time,  eight  states  still  maintained  the  in- 
dependent treasury  system,  while  four  kept  part  of  their 
funds  in  vaults  and  part  of  them  in  depositories.  The  rest 
of  the  states  followed  the  depository  plan.  The  depositories 
were  named  in  different  ways,  sometimes  by  law,  but  more 
often  by  the  governor,  treasurer,  state  board  of  deposit  or 
other  board.  In  one  state  the  legislature  determined  the  city 
in  which  the  funds  should  be  deposited,  while  the  governor 
selected  the  particular  bank  in  that  city.  The  number  of  de- 
positories in  each  state  varied  from  one  to  about  two  hun- 
dred. In  1906  there  were  sixteen  states,  including  those  hav- 
ing the  vault  system,  which  received  no  interest  on  the  public 
funds.**  In  the  independent  treasury  states,  the  states  not 
only  derive  no  interest  from  the  funds,  but  are  put  to  expense 
in  order  to  safeguard  the  money.  Furthermore,  the  funds 
are  withdrawn  from  circulation.  On  the  other  hand,  some 
of  the  depository  states  have  lost  some  money  through  the 
failure  of  the  banks.  This  contingency,  however,  is  now 
generally  guarded  against  by  requiring  the  banks  to  furnish 

■**  "Depository  Laws  of  the  Several  States,"  First  Biennial  Report 
of  the  Washington  State  Board  of  Tax  Commissioners,  1905-6,  p.  40. 
See  also  E.  R.  Buckley,  "Custody  of  State  Funds,"  Annals  of  the 
American  Academy  of  Political  and  Social  Science,  vi,  p.  397;  C.  S. 
Potts,  "The  Independent  Treasury  versus  Bank  Depositories :  A 
Study  in  State  Finance,"  Ibid.,  xx,  p.  571 ;  E.  E.  Agger,  The  Budget 
in  the  American  Commonw^ealths,  Columbia  University  Studies,  xxv, 
No.  2,  Chap.  IV,  Part  III. 

280 


TAXATION  AND  FINANCE 

adequate  security  for  the  safety  of  the  funds  intrusted  to 
them. 

Some  attempts  have  been  made  in  recent  years  to  bring 
about  a  more  effective  system  of  accounting  in  the  manage- 
ment of  state  finances.  The  development  of  state  supervision 
over  local  accounts  has  had  a  reflex  influence  in  improving 
those  of  the  states.  Many  of  the  laws  providing  super- 
vision of  local  accounts  provide  also  for  the  inspection  of 
state  accounts.  The  state  bureaus  of  inspection  and  super- 
vision of  public  offices  in  Ohio,  Washington  and  other  states 
have  large  powers  of  control  over  both  state  and  local  offices. 
More  than  thirty  states  have  now  adopted  some  plan  of  uni- 
form accounting.  Among  the  recent  laws  is  that  of  Oregon, 
which  provides  that  the  state  insurance  commissioner  shall 
formulate  and  prescribe  a  uniform  system  of  accounting  to  be 
used  by  all  officers  and  institutions  expending  state  money, 
and  shall  also  require  reports  from  state  officers  and  em- 
ployees. He  is  also  authorized  to  make  an  annual  audit  of  the 
books  and  accounts  of  each  officer  and  institution  spending 
state  money.  The  failure  of  any  officer  to  use  the  system 
of  accounting  prescribed  by  the  insurance  commissioner,  or 
to  report  to  him  as  requested,  is  punishable  as  a  misdemeanor, 
and  may,  in  addition,  be  punished  by  removal  from  office.*^ 

In  spite  of  the  progress  that  has  been  made,  it  cannot  be 
said  that  any  state  has  yet  established  a  central  department 
having  adequate  powers  of  control  over  all  the  financial  opera- 
tions of  the  state.  Various  functions  having  to  do  with  the 
state's  finances  are  still  assigned  to  different  officers  and  boards 
acting  more  or  less  independently.  The  need  for  a  state  reve- 
nue commission  or,  better  still,  a  state  finance  commission 
with  complete  authority  over  all  the  administrative  phases  of 
state  finance  is  coming  more  and  more  to  be  realized.  Such 
a  plan  has  been  recommended  by  the  Illinois  Efficiency  and 
Economy  Committee  and  indorsed  by  the  governor  of  that 

**  Oregon  Session  Laws,  1913,  Ch.  286. 

281 


AMERICAN  STATE  ADMINISTRATION 

state.  It  provides  for  the  consolidation  of  the  tax  levying 
boards  and  the  revenue  collecting  departments  of  the  state 
into  a  department  of  finance  under  the  control  of  a  state 
finance  commission,  to  consist  of  the  state  treasurer  and  au- 
ditor of  public  accounts,  ex  officio,  and  three  members  ap- 
pointed by  the  governor  and  senate,  to  be  known-«as  the  state 
comptroller,  the  tax  commissioner  and  the  revenue  commis- 
sioner/^ 

State  Expenditures. — One  of  the  striking  phenomena  of  the 
present  day  is  the  increasing  cost  of  government  and  the 
mounting  tide  of  public  expenditures.  This  is  especially  true 
in  the  case  of  the  states,  where  expenditures  have  increased 
during  recent  years  more  rapidly  than  population  or  than 
the  assessed  valuation  of  property.  Campaigns  have  been 
waged  upon  the  issue  of  economy  and  retrenchment,  but  ad- 
ministrations elected  upon  this  issue  have  found  themselves 
powerless  to  stem  the  tide  toward  lavish  expenditures.  Gov- 
ernors have  frequently  sounded  notes  of  warning  in  legislative 
ears,  but  without  avail.  From  1903  to  1913  the  total  gov- 
ernmental cost  payments  of  the  states  increased  from  $186,- 
000,000  to  $383,000,000,  or  106  per  cent,  which  was  a  more 
rapid  rate  of  increase  than  in  the  case  of  either  the  national  or 
local  governments  for  the  same  period."  The  total  revenue 
receipts  of  the  states  increased  during  the  same  period  only 
94  per  cent.  Thus  the  productivity  of  existing  sources  of 
revenue  is  increasing  less  rapidly  than  expenditures,  which 
necessitates  the  finding  of  new  sources  of  revenue  or  the  more 
economical  spending  of  that  derived  from  existing  sources. 

The  increase  of  state  expenditures  does  not  necessarily  in- 
dicate the  existence  of  extravagance  or  useless  spending,  for 
the  increase  in  expenditures  measures  roughly  the  increase  in 


*^  Report  of  the  Illinois  Efficiency  and  Economy   Committee,   1915, 
p.  180;  "Biennial  Message  of  Governor  Dunne,"  1915,  p.  20. 

*'U.  S.  Census  Bureau:     "Report  on  National  and  State  Revenues 
and  Expenditures,  1903  and  1913"  (1914). 

282 


TAXATION  AND  FINANCE 

the  activities  which  the  states  carry  on.  Some  functions  for- 
merly performed,  if  at  all,  by  the  local  governments  have 
frequently  been  assumed  by  the  states,  while  the  latter  have 
also  taken  on  new  functions  not  previously  performed  at  all. 
At  the  same  time,  there  has  been  a  rapid  extension  in  the 
scope  of  existing  state  functions.  The  larger  proportion  of 
the  state  funds  are  now  being  expended  upon  what  may  be 
called  the  developmental  functions,  such  as  education  and 
charities.  There  is,  however,  a  noticeable  increase  in  the 
sums  necessary  to  carry  on  the  newer  regulative  functions. 
Nevertheless,  while  this  increase  of  expenditures  is  to  a  con- 
siderable extent  due  to  a  legitimate  growth  of  state  activities, 
combined  with  the  increase  in  the  supply  of  gold  and  other 
general  causes,  it  is  undoubtedly  due  also  in  part  to  graft, 
extravagance,  uneconomical  methods  and  the  multiplication  of 
useless  boards  and  officers.  At  present  much  state  money  is 
wasted  annually  through  unwise  or  excessive  appropriations. 
This  is  due  in  large  measure  to  the  haphazard  method  of 
enacting  appropriation  bills  and  to  the  lack  of  any  adequate 
system  of  budget  making.  The  waste  of  public  funds,  how- 
ever, cannot  be  laid  entirely  at  the  door  of  the  appropriating 
authority,  but  some  responsibility  for  this  condition  must  also 
be  laid  upon  the  administrative  disbursing  authorities.  The 
I  unnecessary  duplication  of  labor,  the  uneconomical  purchase 
of  supplies  and  the  mismanagement  of  administrative  work 
tend  largely  to  increase  the  high  cost  of  government. 

Economy  in  expenditure  cannot  be  fully  attained  so  long  as 
each  state  department,  board  and  institution  separately  pur- 
chases its  own  supplies.  The  money  appropriated  for  the  use 
of  various  state  institutions  has  heretofore  frequently  been 
more  than  necessary  for  the  reason  that  each  such  institution 
was  allowed  separately  to  purchase  its  own  supplies.  Not 
only  did  this  allow  room  for  occasional  favoritism  in  awarding 
contracts,  without  sufficient  scrutiny  on  the  part  of  any  cen- 
tral state  official,  but  it  also  divided  the  power  of  spending 

283 


AMERICAN  STATE  ADMINISTRATION 

the  state  money  into  so  many  hands  that  higher  prices  had 
to  be  paid  for  necessary  supplies.*^  Moreover,  frequently  in- 
sufficient care  was  taken  in  checking  up  the  dehveries  of  sup- 
plies so  as  to  make  sure  that  they  were  in  accordance  with 
the  specifications.  These  conditions,  however,  have  been  some- 
what remedied  by  the  creation  in  a  number  of  states  of  boards 
of  control  of  all  charitable  and  correctional  institutions,  thus 
concentrating  the  fiscal  management  of  such  institutions  in  the 
hands  of  a  central  body,  with  the  consequent  increased  econ- 
omy in  the  purchase  of  supplies.  In  order  to  secure  economy 
in  respect  to  this  class  of  expenditure  as  well  as  to  secure 
a  better  quality  in  the  supplies  purchased,  some  states  have 
gone  a  step  further  by  creating  a  central  purchasing  agency 
for  the  state.  New  Hampshire  and  Vermont  have  provided 
for  the  appointment  by  the  governor  of  a  state  purchasing 
agent,  whose  business  is  to  purchase  supplies  not  only  for 
the  state  institutions,  but  for  all  the  departments  of  the  state 
government.  In  19 15  California  passed  a  similar  statute, 
which  creates  the  state  purchasing  department,  in  charge  of 
the  state  purchasing  agent,  to  be  appointed  by,  and  hold  office 
at  the  pleasure  of  the  governor.  The  purchasing  agent  is 
empowered,  upon  the  approval  of  the  state  board  of  control, 
to  contract  for  and  purchase  all  supplies  necessary  for  the 
proper  transaction  of  the  business  of  each  state  department, 
commission,  board,  institution  and  official.*^ 

The  State  Budget. — A  budget,  in  the  sense  in  which  that 
term  is  properly  used,  may  be  described  as  a  comprehensive 
financial  program,  containing  a  complete  plan  of  proposed  ex- 
penditures and  estimated  revenues  for  the  ensuing  fiscal  period, 
submitted  by  the  executive  for  the  approval  of  the  legislative 

"  In  New  York  there  are  "some  sixty-five  officers  of  the  state  and  of 
its  counties  who  share  with  the  state  comptroller  and  treasurer  the 
control  over  the  expenditures  of  state  moneys."  "Annual  Message  of 
Gov.  Whitman,  January,   1916,"  p.  7. 

**  California  Session  Laws,  1915,  Ch.  351.  On  the  purchase  of  sup- 
plies, see  also  below,  Ch.  XIII. 

284 


TAXATION  AND  FINANCE 

branch  of  the  government.  As  long  as  the  expenditures  of 
the  state  governments  were  comparatively  low,  no  great  need 
for  such  a  budget  scheme  was  generally  felt.  But  when,  in 
recent  years,  expenditures  mounted  so  high  as  to  make  in- 
sufficient the  existing  sources  of  revenue,  the  attempt  has  been 
made  to  seek  relief  not  only  through  the  creation  of  new 
sources  of  revenue,  but  also  through  a  more  unified  control 
over  expenditures  and  a  more  systematic  correlation  of  ex- 
penditures and  revenues.  The  initiative  in  matters  of  appro- 
priation has  heretofore  been  largely  in  the  hands  of  legislative 
committees,  each  committee  considering  separately  and  with- 
out adequate  publicity  a  particular  field  of  expenditures.  Un- 
der these  conditions,  the  pressure  of  local  interests  and  log- 
rolling methods  of  legislation  inevitably  produce  waste  and 
extravagance  in  the  expenditure  of  the  public  funds.  The  only 
apparent  escape  from  this  evil  is  by  placing  the  initiation  of 
the  budget  in  the  hands  of  the  chief  executive,  who  represents 
the  state  as  a  whole  and  general,  rather  than  special  or  local, 
interests. 

The  positive  legal  power  of  the  governor  to  initiate  a  budget 
has  been  greater  than  his  actual  exercise  of  power.  A  number 
of  state  constitutions  authorize  him  to  submit  "measures"  for 
the  consideration  of  the  legislature,  while  others  provide  more 
specifically  that  he  shall  present  to  that  body  at  the  beginning 
of  each  session  "estimates  of  the  amount  of  money  to  be 
raised  by  taxation  for  all  purposes."  ^°  Such  provisions,  how- 
ever, have  either  been  ignored  or  utilized  in  a  merely  per- 
functory manner.  This  is  probably  due  in  part  to  the  disinte- 
gration of  state  administration.  The  independence  of  the 
various  state  administrative  officers  from  control  by  the  gov- 
ernor enables  them  to  ignore  him  and  to  go  directly  to  the 
legislature  with  their  requests  for  appropriations.  Those  ad- 
ministrative officers  who  are  closely  allied  politically  with  the 
party  or  faction  having  control  of  the  appropriation  commit- 

^"e.  g.,  Constitution  of  Illinois,  Art.  V,  Sect.  7. 

285 


AMERICAN  STATE  ADMINISTRATION 

tees  are  naturally  more  likely  to  have  their  requests  granted, 
without  regard  to  their  real  needs.  This  practice  is  out  of 
harmony  with  the  principles  of  orderly  administration,  and  en- 
tirely incompatible  with  the  making  of  a  scientific  budget.  The 
comparatively  short  term  of  the  governor  and  his  election  in 
the  even  years  are  conditions  which  also  adversely  affect  the 
strength  and  continuity  of  the  governor's  control  over  the 
budget.  If  the  governor  is  to  be  given  the  power  to  prepare 
and  transmit  to  the  legislature  a  budget,  he  should  be  allowed 
sufficient  time  in  which  to  prepare  it  before  it  comes  up  in  the 
legislature.  In  order  to  effect  this  object,  it  has  been  recom- 
mended that  the  governor  be  elected  in  the  odd  years  so  that 
he  may  have  the  advantage  of  at  least  a  year  in  office  before 
the  legislature  meets,  unless  an  emergency  should  require  a 
special  session  to  be  called. ^^ 

The  initiative  in  determining  the  amount  and  objects  of  state 
expenditure  has  hitherto  lain  largely  with  the  legislature.  This 
power  has  made  that  body,  rather  than  the  governor,  the 
central  controlling  power  over  the  administration.  The  appro- 
priation bills  have  sometimes  gone  into  minute  detail,  thus 
giving  the  legislature  a  close  and  intimate  control  over  the 
administrative  services.  While  some  control  should  be  exer- 
cised by  the  legislature  over  expenditures  by  the  administrative 
officers  in  order  to  prevent  abuses  which  might  otherwise  arise, 
such  control  should  be  exercised  by  legislative  provision  for 
careful  audit  of  executive  accounts  and  by  full  publicity  as  to 
expenditures,  rather  than  by  the  device  of  an  elaborately  seg- 
regated budget.  The  administrative  officers,  by  reason  of 
their  experience  in  the  carrying  on  of  administrative  work, 
are  in  a  better  position  than  the  legislature  to  draw  up  the 
estimates   of   funds   needed   for  the   support  of   such   work. 


''^Report  of  the  Economy  and  Efficiency  Commission  of  the  Com- 
monwealth of  Pennsylvania,  1915,  p.  6.  To  this  plan,  however,  it 
may  be  objected  that  if  the  governor  and  legislature  are  elected  at 
different  times,  they  are  less  likely  to  be  in  political  harmony. 

286 


TAXATION  AND  FINANCE 

Lump  sum  appropriations  give  greater  independence  to  the 
administrative  officers,  and  tend  to  increase  administrative 
efficiency  and  to  prevent  logrolling  methods  in  the  legisla- 
ture. Such  administrative  independence  is  not  dangerous  if 
combined  with  a  proper  accounting  system  for  holding  the 
disbursing  officers  responsible. 

Again,  the  governor  has  been  confined  to  the  negative  func- 
tion of  vetoing  items,  or,  in  one  or  two  states,  of  reducing 
items  in  appropriation  bills.  The  veto  power  alone  has  proven 
to  be  an  insufficient  instrument  to  enable  the  governor  to  con- 
struct a  complete  financial  program.  He  does  not  usually 
have  sufficient  time  or  information  to  do  more  than  lop  oflf 
such  of  the  seemingly  more  needless  appropriations  as  may 
be  necessary  in  order  to  keep  within  the  estimated  revenues. 
Some  improvement  has  been  made  in  recent  years,  however, 
through  the  enactment  of  laws  designed  to  put  in  motion 
administrative  agencies  for  collecting  and  compiling  estimates 
and  transmitting  them  to  the  legislature  for  its  information. 
Thus,  the  Illinois  law  of  1913,  establishing  the  legislative  ref- 
erence bureau,  provides  as  one  of  the  duties  of  such  bureau, 
that  of  causing  to  be  "prepared,  printed  and  distributed  for 
the  use  of  the  members  of  the  General  Assembly,  a  detailed 
budget  of  the  appropriations  which  the  officers  of  the  several 
departments  of  the  state  government  report  to  it  are  re- 
quired for  their  several  departments  for  the  biennium  for 
which  appropriations  are  to  be  made  by  the  next  General 
Assembly,  together  with  a  comparative  statement  of  the  sums 
appropriated  by  the  preceding  General  Assembly  for  the 
same  purposes."  ^^  Somewhat  similar  laws  have  been  en- 
acted in  other  states.     Thus,  in  the  same  year,  Oregon  pro- 

"  Illinois  Session  Laws,  1913,  p.  392.  It  is  to  be  noted,  however, 
that  the  Illinois  legislative  reference  bureau  is  not  strictly  an  adminis- 
trative agency,  since  it  is  largely  under  the  control  of  the  legislature, 
and,  furthermore,  the  so-called  budget  mentioned  in  the  act  is  not 
strictly  a  budget,  as  it  makes  no  provision  for  a  statement  of  estimated 
revenues. 

287 


AMERICAN  STATE  ADMINISTRATION 

vided  by  law  that  all  departments  and  institutions  should 
biennially  file  with  the  secretary  of  state  statements  showing 
the  amounts  appropriated  for  the  current  and  next  preceding 
biennial  period,  the  amounts  required  during  the  ensuing  bien- 
nial period,  and  estimates  of  probable  revenues  of  each  such 
department  or  institution  for  the  ensuing  biennial  period. 
The  statements  were  then  to  be  tabulated  by  the  secretary  of 
state  and  transmitted  to  the  governor  and  members  of  the 
legislature,  and  upon  the  basis  of  such  tabulation,  the  gover- 
nor is  in  a  position  to  make  recommendations  to  the  legisla- 
ture." Similarly,  the  Massachusetts  Commission  on  Economy 
and  Efficiency  was  created  in  1912  with  power  to  inquire 
into  the  laws  governing  the  financial  transactions  of  the  com- 
monwealth, to  scrutinize  the  estimates  of  the  various  depart- 
ments and  institutions  and  to  make  recommendations  to  the 
governor  and  council  and  the  general  court. ^* 

Although  such  laws  constitute  a  step  in  advance,  they  are 
seriously  deficient  in  that  they  provide  in  the  main  merely 
for  the  collection  and  transmittal  of  financial  information  to 
the  legislature,  and  have  no  binding  force  upon  that  body. 
Moreover,  they  do  not,  as  a  rule,  represent  the  authoritative 
recommendation  of  a  responsible  state  officer,  based  upon  a 
broad   survey   of   the   financial   needs   and    resources  of   the 
state.     Furthermore,  the  estimates,  as  transmitted  to  the  leg- 
islature,  are   based   almost   entirely   upon   the   statements  of 
financial    needs   made   by   heads   of   departments   and    other 
administrative    officers,    without    adequate    and    disinterested 
examination  by  experts  outside  the  departments  concerned. 
The  need  for  an  intelligent  revision  of  the  departmental  esti- 
mates, based  upon  accurate  information,  was  provided  for  in 
the  Ohio  law  of  1913,  under  which  the  governor  appointed  a 
state  budget  commissioner  with  a  number  of  assistants,  having 
ample  power  to  examine  officials  and  to  compel  the  produc- 

"  Oregon  Session  Laws,  1913,   Ch.  284. 
"Massachusetts  Laws  of  1912,  Ch.  719. 

288 


TAXATION  AND  FINANCE 

tion  of  books  and  papers  so  as  to  secure  the  necessary  infor- 
mation. 

The  efifectiveness  of  a  budget  prepared  under  administra- 
tive supervision  and  transmitted  by  the  governor  to  the  legis- 
lature depends  to  a  considerable  extent  upon  the  relations 
between  the  governor  and  the  legislature.  Even  if  the  budget 
so  transmitted  has  no  legally  binding  force  upon  the  legisla- 
ture, it  may  be  very  effective  if  the  governor  is  recognized 
as  the  political  leader  of  the  party  in  control  of  the  legisla- 
ture. Under  these  circumstances,  greater  weight  will  natu- 
rally be  attached  to  his  recommendations  and  more  effective 
cooperation  between  the  executive  and  the  legislature  will  be 
possible.  Some  states  have  attempted  to  give  a  legal  sanction 
to  such  cooperative  action  by  providing  that  the  budget  shall 
be  drawn  up  by  a  board  composed  of  members  of  both  the 
legislative  and  executive  branches  of  the  government.  Laws 
providing  for  such  joint  action  have  been  enacted  in  Wis- 
consin, Vermont,  New  York,  Connecticut  and  other  states. 
Thus,  in  Connecticut,  a  state  finance  board  is  established, 
composed  of  the  state  treasurer,  comptroller,  and  tax  com- 
missioner, ex  officio,  and  three  appointees  of  the  governor, 
which  receives  estimates  from  the  various  departments  and 
institutions.  There  is  also  created  a  joint  standing  committee 
of  the  legislature  which  meets  with  the  state  finance  board 
during  the  sessions  of  the  legislature.  All  appropriation 
bills  are  to  be  referred  to  the  joint  body  for  its  recommenda- 
tions and  it  may  also  originate  such  bills  it  deems  neces- 
sary.^^ Such  a  method  of  joint  action  fits  in,  perhaps,  with 
less  disturbance  to  the  general  framework  of  state  govern- 
ment than  a  purely  executive  budget,  but  its  effectiveness  de- 
pends on  the  existence  of  special  conditions,  which  cannot 
always  be  expected.  The  New  York  State  Board  of  Estimate, 
created  in  1913,  and  composed  of  the  governor  and  other 
state  executive  officers  and  chairmen  of  legislative  committees 

"  Connecticut   Public  Acts,   1915,   Ch.   302. 

289 


AMERICAN  STATE  ADMINISTRATION 

together  with  the  commissioner  of  economy  and  efficiency ,^^ 
did  not  work  so  well  as  to  justify  the  conclusion  that  such  an 
arrangement  is  always  feasible. 

The  comparative  ineffectiveness  which  has  been  experi- 
enced in  the  operation  of  most  of  the  schemes  for  a  state 
budget  hitherto  adopted  has  gradually  led  to  the  conclusion 
that  more  radical  changes  are  necessary  in  order  to  accom- 
plish a  real  reform.  In  countries  having  a  real  budget,  such 
as  Great  Britain,  the  Cabinet  officers  are  in  practically  com- 
plete control  of  the  finances,  and  the  executive  exercises  such 
control  in  some  of  the  large  cities  of  America.  It  is  to  be 
remembered,  however,  that  in  Great  Britain  the  Cabinet  offi- 
cers having  charge  of  the  finances  are  also  members  and  lead- 
ers of  the  legislature.  On  account  of  the  prevalence  of  the 
principle  of  separation  of  powers  in  the  organization  of  our 
state  governments,  it  would  scarcely  be  feasible  at  once  to 
transplant  British  budget  methods  to  the  American  states.  A 
greater  measure  of  executive  control  than  is  now  usually 
found  is,  however,  both  feasible  and  desirable.  Even  the 
principle  of  separation  of  powers  itself  requires  that  the  ex- 
ecutive department  should  not  be  forced  by  the  legislature  to 
spend  more  money  for  the  performance  of  its  functions  and 
services  than  the  executive  deems  necessary  for  the  purpose. 
Therefore,  the  legislature  should  not  be  allowed,  except,  per- 
haps, by  an  extraordinary  vote,  to  increase  items  in  the 
appropriation  bills  for  the  support  of  the  executive  services 
beyond  the  amounts  recommended  by  the  executive  depart- 
ment. 

Several  years  ago  the  People's  Power  League  of  Oregon 
pointed  the  way  toward  a  reform  of  budget  procedure 
through  its  proposal  that  the  governor  be  given  a  seat  in  the 
legislative  assembly  and  be  vested  with  the  exclusive  right  of 
introducing  all  appropriation  bills,  subject  to  the  right  of  the 
assembly  to  reduce  but  not  to  increase  the  amount.     Some 

"New  York  Session  Laws,  1913,  Ch.  281. 

290 


TAXATION  AND  FINANCE 

features  of  this  plan  were  embodied  in  the  budget  scheme 
contained  in  the  proposed  New  York  constitution  of  191 5. 
According  to  the  latter  plan,  it  was  provided  that  the  gover- 
nor should  submit  at  eacli  session  of  the  legislature  a  budget 
containing  a  complete  scheme  of  proposed  expenditures  and 
estimated  revenues.  Aftei*  submission,  but  before  final  action 
by  the  legislature,  the  governor  might  amend  or  supplement 
the  budget.  In  respect  to  the  consideration  of  the  budget  by 
the  legislature,  the  proposed  constitution  laid  down  three  im- 
portant rules :  first,  the  governor  and  the  heads  of  depart- 
ments should  have  the  right,  and  it  should  also  be  their  duty 
when  requested  by  either  house,  to  appear  and  be  heard  in 
respect  to  the  budget  during  its  consideration  and  to  answer 
questions  in  regard  to  it;  second,  except  in  respect  to  appro- 
priations for  the  legislature  and  the  judiciary,  the  legislature 
could  not  alter  an  appropriation  bill  submitted  by  the  gover- 
nor otherwise  than  by  striking  out  or  reducing  items  therein ; 
third,  neither  house  could  consider  further  appropriations  un- 
til the  appropriation  bills  proposed  by  the  governor  should 
have  been  finally  acted  upon  by  both  houses.  The  final  action 
of  the  legislature  in  passing  upon  the  estimates  for  the  execu- 
tive department  would  carry  such  provisions  into  effect  with- 
out further  action  by  the  governor,  as  his  approval  or  veto 
would  be  unnecessary  in  such  cases.  This  budget  plan,  had 
it  been  adopted,  would  have  introduced  a  very  decided  im- 
provement over  the  present  lack  of  system. 

Probably  the  most  promising  state  budget  plan  yet  brought 
forward  in  this  country  is  that  proposed  in  1916  by  the  Good- 
now  Efficiency  and  Economy  Commission  of  Maryland.  It 
embodies  the  main  features  of  the  budget  plan  contained  in 
the  proposed  New  York  Constitution,  but  works  out  more 
carefully  and  more  in  detail  the  respective  functions  of  the 
governor  and  the  legislature.  It  provides  for  effective  admin- 
istrative supervision  over  the  estimates  and  gives  the  governor 
the  power  to  determine  the  maximum  amounts  that  may  be 

291 


AMERICAN  STATE  ADMINISTRATION 

spent  for  the  support  of  the  state  executive  departments, 
boards  and  institutions.  The  estimated  amounts  necessary 
for  the  support  of  the  judiciary  and  legislature  are  certified 
to  the  governor  by  the  state  comptroller  and  the  presiding 
officers  of  each  house  respectively,  and  are  inserted  in  the 
budget  by  the  governor  without  revision,  but  public  hearings 
are  to  be  held  on  all  estimates.  The  legislature  may  strike 
out  items  or  reduce,  but  not  increase,  the  amounts  proposed 
by  the  governor  for  the  support  of  the  executive  department ; 
it  may  increase  but  not  reduce  those  proposed  for  the  sup- 
port of  the  judicial  department;  and  it  may  either  increase  or 
reduce  the  estimates  for  the  legislature.  Moreover,  while  the 
legislature  may  not  consider  other  appropriation  bills  until 
the  governor's  budget  bill  has  been  finally  acted  upon,  it  may 
subsequently  initiate  appropriations  for  objects  not  included 
in  the  governor's  budget.  The  exercise  of  this  power,  how- 
ever, is  attempted  to  be  safeguarded  from  abuse  by  the  fol- 
lowing conditions:  It  can  only  be  exercised  by  a  three-fifths 
vote;  it  is  subject  to  the  usual  power  of  the  governor  to 
approve  or  veto ;  and  the  special  appropriation  bill  must  be 
accompanied  by  provision  for  the  levy  of  a  tax  sufficient  in 
amount  to  defray  the  expenses  necessitated  by  such  act  of 
appropriation.  If  the  governor's  budget  bill  has  not  been 
acted  upon  by  the  legislature  before  the  end  of  the  regular 
session,  the  governor  may  extend  the  session  for  such  fur- 
ther period  as  he  thinks  necessary,  and  during  such  extension 
of  the  session  no  matter  other  than  such  bill  may  be  con- 
sidered. 

This  plan  is  by  no  means  perfect.  But,  by  giving  the  legis- 
lature greater  power  over  the  estimates  for  the  legislative 
and  judicial  departments  than  over  those  for  the  executive 
departments,  it  recognizes  the  principle  of  separation  of 
powers.  At  the  same  time,  it  tends  to  increase  the  governor's 
control  over  the  finances  of  the  state  as  compared  with  that 
which  he  now  possesses,  and  thus,  through  concentration  of 

292 


TAXATION  AND  FINANCE 

responsibility,   may   operate   to  bring  about   a   very   decided 
advance  towards  a  scientific  budget  system. 


REFERENCES  AND  COLLATERAL  READING 

Taxation 

Adams,  H.  C.     The  Science  of  Finance. 

.     "Tendencies  in  Railway  Taxation,"  Proceedings  of  the 

American  Political  Science  Association,  i  (1904),  pp.  224- 
232. 

BoGART,  E.  L.  "Recent  Tax  Reforms  in  Ohio,"  American  Eco- 
nomic Review,  i,  pp.  505  ff. 

Bowman,  H.  M.  "The  Administration  of  Iowa,"  Columbia  Uni- 
versity Studies,  xviii.  No.  i,  Ch.  V. 

Brindley,  J.  E.  "State  Supervision  of  County  Assessment  and 
Taxation,"  Annals  of  the  American  Academy  of  Political  and 
Social  Science,  May,  1913,  pp.  213-226. 

.     "Tax  Administration   in   Iowa,"   Iowa  Applied  History 

Series,  i,  pp.  493-606. 

Bulletin  of  the  National  Tax  Association,  Feb.,  1916 — date. 

Daniels,  W.  M.     Elements  of  Public  Finance. 

Davenport,  H.  J.  "State  Taxation  of  Interstate  Commerce,"  Po- 
litical Science  Quarterly,  xxvi,  pp.  643-658. 

Ely,  R.  T.     Taxation  in  American  States  and  Cities. 

Fairlie,  J.  A.  "The  Centralization  of  Administration  in  New 
York  State,"  Columbia  University  Studies,  ix.  No.  3,  Ch.  V. 

.    Local  Government  in  Counties,  Towns,  and  Villages,  Ch. 

XV. 

.     "Revenue  and  Finance  Administration,"  in  Report  of  the 

Illinois  Economy  and  Efficiency  Committee,  191 5,  pp.  83-184. 

.     "Taxation  in  Illinois,"  American  Economic  Review,  June, 


1911. 

Gilbert,  J.  H.  "The  Apportionment  of  State  Taxes  in  Oregon," 
Political  Science  Quarterly,  xxvi,  pp.  271-289. 

GooDNOW,  F.  J.  "Congressional  Regulation  of  State  Taxation," 
Political  Science  Quarterly,  xxviii,  pp.  405-432. 

La  Follette,  R.  M.  "Taxation  of  the  Property  of  Railway  Cor- 
porations," in  Reinsch,  Readings  on  American  State  Govern- 
ment, pp.  310-318. 

293 


AMERICAN  STATE  ADMINISTRATION 

McCrea,  R.  C.  "The  Taxation  of  Transportation  Companies  in 
the  United  States,"  Annals  of  the  American  Academy  of  Po- 
litical and  Social  Science,  xv,  pp.  355-380. 

McGovERN,  F.  E.  and  Willson,  A,  E.  "A  State  Income  Tax," 
in  Governors^  Conference  Proceedings,  1912,  pp.  79-114. 

Magruder,  F,  a,  "Recent  Administration  in  Virginia,"  Johns 
Hopkins  Studies,  xxx,  No.  i,  Ch.  VII. 

Mathews,  J.  M.  "Tax  Administration  in  New  Jersey,"  Journal 
of  Political  Economy,  xx,  pp.  716-737. 

Orth,  S.  p.  "The  Centralization  of  Administration  in  Ohio," 
Columbia  University  Studies,  xvi.  No.  3,  Ch.  II. 

Plehn,  C.  C.     Government  Finance  in  the  United  States. 

.    Introduction  to  Public  Finance. 

.     "Revenue  Systems  of  State  and  Local  Governments,"  in 

Report  of  U.  S.  Census  Bureau  on  Wealth,  Debt  and  Taxa- 
tion, 1907. 

Proceedings  of  the  National  Tax  Association  ( formerly  "State  and 
Local  Taxation"),  1907 — date. 

Proceedings  of  State  Tax  Conferences,  particularly  those  of  New 
York,  Indiana,  Washington,  and  Michigan. 

Rawles,  W.  A.  "Centralizing  Tendencies  in  the  Administration 
of  Indiana,"  Columbia  University  Studies,  xvii.  No.  i, 
Ch.  VI. 

"Readjustments  in  Taxation,"  Annals  of  the  American  Academy 
of  Political  and  Social  Science,  March,  1915,  passim. 

Reports  of  Special  State  Tax  Commissions,  particularly  those  of 
California  (1906  and  1910)  ;  Illinois  (1910);  and  Kentucky 
(1912-14). 

Reports  of  Permanent  State  Tax  Commissions  and  Commis- 
sioners. 

Seligman,  E.  R.  a.     Essays  in  Taxation,  8th  edition,  1913. 

.     "Finance   Statistics   of  the   American   Commonwealths," 

Pubs,  of  the  American  Statistical  Association,   1889, 

U.  S.  Census  Bureau.  Taxation  and  Revenue  Systems  of  State 
and  Local  Governments,  1914. 

U.  S.  Commissioner  of  Corporations.  Reports  on  the  Taxation  of 
Corporations,  Parts  i-vi,  1909-15. 

U.  S.  Commissioner  of  Corporations,  Special  Report  on  Taxa- 
tion, 1 91 3. 

Whitten,  R.  H.  "Public  Administration  in  Massachusetts," 
Columbia  University  Studies,  viii.  No.  4,  Ch.  VII. 

294 


TAXATION  AND  FINANCE 

The  Budget 

Adams,  H.  C.    Science  of  Finance,  pp.  103-218. 

Agger,  E.  E.  "The  Budget  in  the  American  Commonwealths," 
Columbia  University  Studies,  xxv,  No.  2. 

Annals  of  the  American  Academy  of  Political  and  Social  Science, 
November,  191 5,  passim. 

Cleveland,  F.  A.,  Fairlie,  J.  A.,  and  Lowrie,  S.  G.,  in  American 
Economic  Review,   Supplement,  March,   191 6,  pp.   50-84. 

GooDNOw^,  F.  J.,  Willoughby,  W.  F.,  and  Lowrie,  S.  G.,  in  Pro- 
ceedings of  the  American  Political  Science  Association,  ix,  pp. 
68-93. 

Lapp,  J.  A.  "The  Budget  System,"  Indiana  University  Bulletin, 
Jan.  15,  1915,  pp.  144-151- 

Lowrie,  S.  G.     The  Budget,  1912. 

New  York  Bureau  of  Municipal  Research,  No.  62,  June,  191 5, 
pp.  251-447. 

Proceedings  and  Debates  of  the  Michigan  Constitutional  Conven- 
tion, 1908,  i,  pp.  738-745- 


CHAPTER   XII 
THE  ADMINISTRATION  OF  EDUCATION 

Under  a  democratic  form  of  government,  education  must  be 
regarded  as  of  peculiar  importance  owing  to  the  need  that 
popular  control  of  public  policy  may  at  the  same  time  be  intel- 
ligent. Judged  both  from  this  point  of  view  and  from  that 
of  the  relative  amount  of  public  expenditure  therefor,  the 
administration  of  education  is  by  far  the  most  important  func- 
tion performed  by  the  American  states.  In  1913,  slightly  more 
than  one-third  of  the  total  governmental  cost  payments  made 
by  the  states  for  all  purposes  went  to  the  support  of  education. 

The  administration  of  education  differs  from  that  of  taxation 
in  that  it  is  not  exclusively  a  state  or  public  function,  but  is 
carried  on  partly  by  private  agencies.  Indeed,  at  the  beginning 
of  the  history  of  the  states,  education  was  considered  as  largely, 
if  not  entirely,  a  matter  for  private  initiative  and  management. 
It  was  only  by  a  gradual  process  that  the  people  became  accus- 
tomed to  the  idea  of  public  schools,  supported  and  controlled 
by  the  state  or  local  units  of  government.  The  instrumentalities 
of  public  education  at  first  established  were  mainly  elementary 
schools  only,  for  many  persons  were  still  unconvinced  that  the 
people  in  general  should  be  taxed  for  the  support  of  higher 
institutions  of  learning,  which  could  be  attended  by  the  sons 
and  daughters  of  only  a  small  proportion  of  the  taxpayers. 
This  stage  in  the  evolution  of  public  opinion,  however,  has  now 
been  passed  and  most  states  make  provision  for  the  carrying  on 
of  higher  education.  A  study  of  public  educational  adminis- 
tration involves  a  consideration  of  the  organization  and  func- 
tions of  the  authorities  and  agencies,  state  and  local,  which 

296 


THE  ADMINISTRATION  OF  EDUCATION 

are  charged  with  carrying  on  such  administration,  together 
with  the  relations  existing  between  them,  and  the  extent  and 
methods  of  governmental  supervision  over  certain  important 
educational  processes.  In  legal  theory,  public  education  has 
been  generally  recognized  as  peculiarly  a  function  of  the  state, 
rather  than  of  the  national  or  local,  governments.^  Neverthe- 
less, it  is  scarcely  possible  to  avoid  giving  considerable  atten- 
tion to  local  educational  agencies,  both  on  account  of  the  large 
share  of  control  and  management  over  schools  left  to  the  locali- 
ties, and  also  on  account  of  the  importance  of  the  relations 
existing  between  the  local  and  central  educational  authorities. 

The  local  units  of  government  utilized  for  the  carrying  on 
of  public  education  are  the  school  district,  the  township,  the 
municipality,  and  the  county.  City  schools  are  more  efficient 
and  more  highly  developed  than  those  of  the  rural  districts,  and 
have  consequently  not  been  brought  under  higher  administra- 
tive supervision  to  as  great  an  extent  as  have  the  rural  schools. 
Of  the  other  three  units  of  local  government,  two  or  all  of 
them  are  frequently  found  exercising  some  powers  pertaining 
to  public  education.  As  a  rule,  however,  some  one  of  these 
units  stands  out  conspicuously  as  the  primary  unit  of  educa- 
tional organization.  Thus,  the  New  England  states,  together 
with  a  few  states  in  other  parts  of  the  country,  are  under  town- 
ship organization.  In  the  South,  on  the  other  hand,  the  county 
is  the  unit  of  educational  organization,  while  in  other  parts  of 
the  country,  the  school  district  occupies  this  position. 

The  school  district  is  the  oldest  and  smallest  unit  of  local 
school  administration.  Originating  in  Massachusetts,  it  spread 
westward  with  the  general  movement  of  population.  It  was 
adopted  in  New  York  in  1795,  in  Ohio  in  182 1,  in  Illinois  in 
1825,  and,  although  now  abandoned  in  New  England,  it  is  still 

*  State  vs.  Haworth,  122  Ind.,  462 ;  Fuller  vs.  Heath,  89  111.,  296 ; 
Gunnison  vs.  Board  of  Education  of  City  of  New  York,  176  N.  Y.,  11; 
quoted  by  T.  E.  Finegan  in  Proceedings  of  the  National  Education 
4ssn.,  1913,  p.  123. 

297 


AMERICAN  STATE  ADMINISTRATION 

found,  either  wholly  or  partially,  in  almost  thirty  states.  In 
some  of  the  larger  states,  such  as  New  York  and  Illinois,  the 
number  of  school  districts  is  between  ten  and  twelve  thousand. 
The  school  district  is  ordinarily  a  body  politic  and  corporate. 
A  district  board  composed  usually  of  three  directors  or  trus- 
tees is  elected  by  the  voters  of  the  district,  and  to  this  board 
the  management  of  the  district  school  is  entrusted,  though  the 
voters  themselves  assembled  in  annual  school  meetings  some- 
times exercise  important  powers.  As  a  rule,  however,  the 
powers  of  the  school  district  are  exercised  by  the  district 
board  as  the  representatives  of  the  voters.  The  more  impor- 
tant powers  and  duties  of  this  board  are :  to  have  general 
charge  of  the  school  property  and  equipment ;  to  visit  and 
inspect  the  school;  to  appoint  the  teacher,  provided  such  ap- 
pointee is  properly  certificated  as  required  by  law;  to  adopt 
and  enforce  all  necessary  rules  and  regulations  for  the  govern- 
ment of  the  schools ;  and,  in  some  states,  to  select  the  text- 
books, determine  the  course  of  study  and,  beyond  a  certain 
minimum,  the  length  of  the  school  year,  and  to  provide  the 
revenue  necessary  to  maintain  schools  in  the  district  through 
the  levy  of  an  annual  tax  upon  the  taxable  property  of  the 
district,  subject  usually  to  the  limitations  of  state  law  as  to 
the  rate  of  the  levy. 

The  district  system  of  school  organization  represents  an 
extremely  democratic  and  decentralized  form  of  control.  Un- 
der the  conditions  which  existed  at  the  time  when  the  states 
were  first  settled,  it  was  doubtless  the  most  feasible  method  of 
local  school  organization.  But  it  is  a  type  of  school  organiza- 
tion adapted  only  to  primitive  conditions  and  sparsely  settled 
regions.  There  may  be  a  few  parts  of  the  country  in  which 
the  district  system  is  still  that  best  suited  to  conditions,  but  in 
much  the  larger  portion,  such  a  primitive  type  of  organization 
has  been  outgrown.  Whatever  advantages  attach  to  the  dis- 
trict system,  and  there  are  some,  are  greatly  counterbalanced 
by  its  defects.     It  necessitates  many  elections  and  the  crea- 

298 


THE  ADMINISTRATION  OF  EDUCATION 

tion  of  a  vast  army  of  local  school  officials,  estimated  in  Illi- 
nois to  number  about  45,000.  This  is  an  average  of  several 
hundred  to  a  county,  and  it  is  doubtful  whether  that  many  com- 
petent men  can  be  found  in  the  average  county.  The  large 
powers  of  control  over  the  schools  granted  to  each  district 
board  of  directors  makes  each  district  largely  independent  of 
other  districts  and  also  of  the  higher  control.  The  very  con- 
siderable degree  of  local  autonomy  vested  in  school  directors 
regarding  many  matters,  such  as  fixing  the  salaries  of  teachers, 
often  operates  practically  to  defeat  the  will  of  the  state,  as  ex- 
pressed in  the  Constitution  or  laws.  The  district  system,  more- 
over, is  excessively  costly  in  comparison  with  the  results  ob- 
tained, because  of  the  large  proportionate  cost  of  administra- 
tion as  compared  with  the  township  or  county  system,  and  it 
frequently  results  in  inequalities  among  the  different  districts, 
both  in  the  rates  of  taxation  for  school  purposes  and  also  in  the 
character  of  the  educational  facilities  provided  under  it. 

No  sufficient  reason  appears  for  retaining  a  unit  of  local 
government  for  school  purposes  distinct  from,  and  smaller  than, 
the  units  provided  for  the  exercise  of  other  local  functions. 
Moreover,  a  reduction  in  the  number  of  school  districts  through 
an  increase  in  their  size  resulting  from  the  adoption  of  the 
township  or  county  as  the  unit  would  considerably  increase 
the  facility  and  efficiency  of  state  supervision  over  local  school 
administration.  In  many  school  districts,  the  amount  of  taxable 
property  is  so  small  that  it  is  difficult  to  raise  revenue  sufficient 
to  maintain  an  efficient  school  in  accordance  with  the  stand- 
ards set  by  the  state.  Furthermore,  there  are  many  districts 
in  which  the  average  attendance  is  so  small  that  adequate  grad- 
ing of  the  pupils  is  impracticable,  and  there  seems  to  be  little 
question  that  many  of  the  district  schools  should  either  be 
abolished  or  consolidated  with  neighboring  schools.  The  Illi- 
nois Educational  Commission  of  1908  thoroughly  investigated 
the  district  system,  and  recommended  most  emphatically  that 
it  be  abolished,  and  that  the  township  system  be  established  in 

299 


AMERICAN  STATE  ADMINISTRATION 

place  of  it,  on  the  ground  that  this  would  open  "the  way  to 
increased  economy  and  efficiency  in  the  educational  work  of  the 
state."  ^  The  township  system  has  now  been  adopted  in  Indi- 
ana, New  Jersey,  Pennsylvania  and  the  New  England  States, 
and  is  permissive  in  some  other  states.  Its  essential  feature  is 
the  management  of  all  the  schools  in  the  township  by  a  single 
board  or  officer  elected  by  the  voters  of  the  township.  Among 
the  advantages  claimed  for  the  township  system  are  that  it  is 
less  expensive,  it  reduces  the  number  of  school  officials,  it 
tends  to  the  discontinuance  of  schools  that  have  become  too 
small  to  be  operated  efficiently,  it  prevents  the  unnecessary 
duplication  of  school  facilities,  and  equalizes  the  burden  of 
taxation. 

The  adoption  of  a  unit  of  school  administration  as  large  as 
the  township  opens  the  way  to  the  consolidation  of  schools.  It 
is  true  that  the  adoption  of  the  township  unit  does  not  neces- 
sarily involve  either  the  abolition  or  the  consolidation  of  any 
of  the  previously  existing  schools,  but  merely  brings  about  a 
unification  in  the  management  and  control  of  the  schools  in 
the  township.  The  result  of  such  unification,  however,  is 
usually  to  create  a  tendency  towards  consolidation.  The  con- 
solidated school  system  in  rural  districts  is  now  found  in  about 
thirty-five  states.  In  some  states,  such  as  Illinois,  Wisconsin 
and  Minnesota,  the  school  trustees  may  close  small  schools  and 
arrange  for  the  education  of  the  children  in  neighboring 
schools.  Consolidation  of  schools  in  rural  districts  usually 
involves  the  necessity  of  a  provision  for  transportation  facili- 
ties at  public  expense,  and  this,  in  turn,  emphasizes  the  desira- 
bility of  good  roads.  As  early  as  1869,  Massachusetts  author- 
ized school  trustees  to  use  public  funds  for  the  conveyance 
of  pupils  to  and  from  the  public  schools.  Indiana  has  about 
600  consolidated  schools  and  expends  nearly  half  a  million 
dollars  a  year  for  transportation  of  pupils.     Even  with  this 

'  Biennial  Report   of  the  Superintendent  of  Public  Instruction   of 
Illinois,  1908-10,  p.  363. 

300 


THE  ADMINISTRATION  OF  EDUCATION 

added  expense,  however,  consolidation  of  schools  proves  to  be 
economical,  for  it  involves  a  lesser  total  expenditure  per  unit 
of  educational  result.  Moreover,  it  provides  better  school 
buildings  and  equipment  and  more  competent  teachers,  it  facili- 
tates grading  or  classification  of  pupils,  and  enlarges  their 
educational  and  social  opportunities.  A  number  of  states 
undertake  to  assist  in  the  movement  towards  consolidation  by- 
granting  special  state  aid  to  consolidated  schools  or  by  assum- 
ing the  payment  of  a  certain  proportion  of  the  expense  of 
transporting  pupils. 

Many  of  the  advantages  claimed  for  the  township  unit  of 
school  administration  as  contrasted  with  the  district  systeni 
apply  also  to  the  county  unit.  Almost  a  dozen  states,  most  of 
them  in  the  South,  have  adopted  the  county  as  the  unit  of 
school  administration,  while  a  few  others  are  partly  under  the 
county  system.  In  these  states  the  powers  of  the  county  edu- 
cational authorities  are  naturally  greater  than  in  the  states  not 
under  the  county  system.  In  about  forty  states,  however, 
including  nearly  all  the  states  outside  New  England,  the  county 
is  the  unit  of  school  supervision.  The  educational  authorities 
attached  to  the  county  are  the  county  school  board  and  the 
county  superintendent  of  schools, 

A  county  board  with  educational  functions  of  some  kind  is 
found  in  about  thirty  states.  In  a  few  of  these  states,  prin- 
cipally in  the  South  and  far  West,  it  has  general  control  and 
management  of  all  the  public  elementary  schools  in  the  county, 
but  usually  it  is  confined  to  the  exercise  of  some  special  edu- 
cational function,  such  as  examining  and  certificating  teachers, 
and  adopting  textbooks  and  courses  of  study.  Some  impor- 
tant states,  such  as  Illinois  and  the  New  England  States,  have 
no  county  board  of  education.  In  those  states  where  such  a 
board  is  found,  its  members  are  usually  appointed,  either  by 
the  governor,  the  state  board  of  education  or  other  body,  or  is 
composed  of  certain  county  or  local  officers  acting  ex  officio. 
In  a  number  of  states  the  county  superintendent  of  schools  is 

301 


AMERICAN  STATE  ADMINISTRATION 

a  member  of  the  board,  and  in  a  few  states  he  is  appointed 
by  the  board.  In  either  case  he  acts  as  the  executive  officer 
of  the  board. 

A  county  superintendent  of  schools,  or  officer  holding  a 
similar  position,  is  found  in  about  forty  states,  including  prac- 
tically all  the  states  rutside  of  New  England.  In  the  large 
majority  of  these  states  he  is  elected  by  popular  vote  on  the 
same  ticket  with  sheriffs  and  other  county  officers.  It  may  be 
questioned  whether  this  method  of  selection  secures  the  best 
results.  It  has  the  practical  effect  of  making  residence  in  the 
county  a  necessary  qualification  for  the  office,  and  it  may  be 
doubted  whether  this  is  wise  in  all  cases.  Moreover,  popular 
election  has  the  effect  of  injecting  political  considerations  into 
the  choice,  and  disqualifies  all,  no  matter  what  their  educational 
attainments  may  be,  who  do  not  belong  to  the  dominant  po- 
litical party.  The  county  superintendent  should  be  an  expert 
in  educational  matters,  but  popular  election  is  not  a  method 
calculr.ted  to  secure  such  a  person.  While  popular  election  is 
the  mclhod  still  obtaining  in  the  majority  of  states,  a  number 
have  adopted  the  method  of  appointment,  either  by  a  central 
state  officer,  or  by  a  county  board  of  education,  or  a  board  com- 
posed of  local  school  officers.  In  Pennsylvania,  for  example, 
he  is  appointed  by  the  school  directors  of  each  county,  and,  in 
Indiana,  by  the  township  trustees  of  each  county.  The  ap- 
pointment of  the  county  superintendent  by  the  county  board 
of  education  is  probably  the  method  best  calculated  to  insure 
the  selection  of  a  competent  person. 

One  result  of  electing  the  county  superintendent  by  popular 
vote  is  that  he  is  chosen  for  a  definite  term  of  office,  usually 
either  two  or  four  years,  and,  while  there  are  frequent  cases 
of  reelection,  the  idea  of  rotation  in  office  is  sometimes  applied 
by  analogy  from  other  elective  offices  and  prevent  the  continu- 
ance in  office  of  a  competent  and  well  qualified  person.  In  a 
number  of  states  no  definite  educational  qualifications  are  pre- 
scribed for  this  office,  although  such  a  requirement  would  not 

302 


THE  ADMINISTRATION  OF  EDUCATION 

be  legally  incompatible  with  the  elective  character  of  the  office. 
The  result  is  that,  in  such  states,  it  is  possible  for  county 
superintendents  to  be  chosen  who  are  inferior  in  scholarship 
and  educational  experience  to  many  of  the  teachers  whom  it 
will  be  their  duty  to  advise  and  supervise  in  educational  work. 
The  principle,  however,  of  requiring  professional  qualifica- 
tions for  this  officer  has  been  established  in  many  of  the  most 
important  states,  including  Wisconsin,  Michigan,  Kansas, 
Nebraska,  Iowa  and  Indiana.  It  is  suggested  that  such  qualifi- 
cations should  extend  at  least  as  far  as  the  requirement  that 
the  county  superintendent  shall  be  a  holder  of  a  teachers' 
certificate  of  the  highest  grade  which  he  is  competent  to  issue, 
and  shall  have  had  at  least  two  years'  experience  teaching  in 
the  public  schools. 

The  compensation  of  the  county  superintendent  is  paid 
sometimes  from  state  funds,  sometimes  from  county  funds, 
and  sometimes  from  both.  It  ranges  between  certain  amounts, 
depending  usually  upon  the  total  population  or  the  school-age 
population  of  the  county.  Since,  upon  this  basis,  the  amount 
of  the  salary  is  definitely  fixed,  there  exists  no  incentive  to  a 
more  efficient  management  of  the  schools  through  the  prospect 
of  a  larger  salary  to  be  gained  thereby.  Moreover,  total  popu- 
lation is  not  a  very  accurate  measure  of  the  amount  of  work 
and  responsibility  which  devolves  upon  the  county  superin- 
tendent. A  better  measure  of  responsibility  would  be  the  num- 
ber of  schools  in  the  county,  provided  city  schools  are  not 
counted  at  full  value,  on  account  of  the  smaller  amount  of 
supervision  needed  over  them  by  the  county  superintendent. 
If  the  total  attendance  at  schools  were  made  the  basis,  it  would 
be  an  incentive  to  the  county  superintendent  to  extend  educa- 
tional facilities  to  as  large  a  proportion  of  the  community  as 
possible.  The  question  is  therefore  suggested  for  consideration 
whether  the  salary  of  the  county  superintendent  should  not 
be  fixed  upon  the  combined  basis  of  number  of  schools  in  the 
county  and  aggregate  school  attendance. 

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AMERICAN  STATE  ADMINISTRATION 

The  powers  and  duties  of  the  county  superintendent  fall 
broadly  into  two  classes :  first,  educational,  such  as  visiting  the 
schools,  advising,  directing,  examining  and  certificating  teach- 
ers, holding  teachers'  institutes,  enforcing  the  compulsory  at- 
tendance law  and  deciding  controversies  arising  under  the 
school  law ;  and  non-  or  quasi-educational,  such  as  the  appor- 
tionment of  state  and  county  school  funds  among  the  town- 
ships or  districts,  giving  notice  of  school  elections,  and  the  in- 
vestigation and  determination  of  all  matters  pertaining  to 
changes  in  the  boundaries  of  school  districts.  The  latter  class 
of  functions  were  originally  the  more  prominent,  but  the 
tendency  at  present  is  to  place  greater  emphasis  upon  his  more 
strictly  educational  duties.  Not  all  of  the  powers  and  duties 
enumerated  are  exercised  by  the  county  superintendent  in  every 
state,  and  frequently  some  of  these  functions  are  exercised 
only  in  cooperation  with  other  authorities,  state  or  local. 
Where  the  county  is  adopted  as  the  unit  of  organization  for 
public  school  adminstration,  the  county  superintendent  nat- 
urally has  greater  authority  than  in  those  states  operating 
under  the  township  or  district  system. 

A  principle  which  is  now  well  recognized  is  that  free  public 
education  is  a  matter  of  such  vital  importance  to  the  general 
welfare  and  interests  of  the  state  as  a  whole  that  it  cannot 
be  safely  left  to  the  mere  voluntary  action  of  the  localities,  but 
the  state  itself  must  see  to  it  that  the  children  of  the  state 
receive  a  good  common  school  education,  either  by  direct  action 
or  through  supervision  by  the  state  of  the  educational  agencies 
and  facilities  supplied  by  the  localities.  In  regard  to  these  two 
methods  of  dealing  with  the  subject,  the  state  has  in  the  main 
adopted  the  former  method,  or  direct  action,  for  the  carrying 
on  of  higher  and  professional  education,  while  leaving  to  the 
localities  the  direct  management  of  elementary  and  secondary 
schools.  Although  this  separation  seems  necessary  on  account 
of  administrative  and  historical  reasons,  nevertheless  the  well- 
being  of  higher  education  cannot  be  disassociated  from  the 

304 


THE  ADMINISTRATION  OF  EDUCATION 

management  of  elementary  schools.  The  connection  between 
higher  and  lower  education  is  such  that  any  widespread  inef- 
ficiency in  the  lower  grades  will  affect  adversely  the  carrying  on 
of  higher  education  in  state  institutions,  and  disseminate  an 
injurious  influence  throughout  the  whole  system.  Both,  there- 
fore, from  the  standpoint  of  the  interest  which  the  state  has  in 
the  carrying  on  of  higher  education,  as  well  as  from  that  of  its 
direct  interest  in  the  efficient  management  of  elementary  edu- 
cation, the  state  cannot  safely  allow  the  lower  grades  of  educa- 
tion to  be  managed  by  the  localities  without  higher  adminis- 
trative supervision.  To  effect  this  purpose  county  supervision 
alone  is  not  sufficient,  and  the  state  has  therefore  established  a 
central  administrative  authority  or  agency,  with  supervisory 
power  sufficient  to  regulate  and  control  the  school  system  of 
the  entire  state. 

The  central  educational  authorities  or  agencies  established 
by  the  state  are  a  state  board  of  education  and  a  state  super- 
intendent of  public  instruction.  A  state  board  of  education  or 
similar  body  is  found  in  about  forty  states.  With  respect  to 
their  composition,  state  boards  of  education  may  be  divided 
into  ex  officio  and  appointive  boards.  The  ex  officio  members 
of  such  boards  are  either  primarily  political  officers,  such  as 
the  governor,  secretary  of  state,  and  attorney-general,  or  pri- 
marily educational  officers,  such  as  the  superintendent  of  public 
instruction  and  the  president  of  the  state  university  or  other 
state  educational  institution.  The  former  class  of  ex  officio 
members  represents  the  older  type  of  state  board  of  educa- 
tion. Such  members,  particularly  if  in  the  majority,  are  likely 
to  lower  the  efficiency  of  the  board  because  of  their  lack  of 
knowledge  of  educational  problems,  their  preoccupation  with 
other  duties,  and  the  lack  of  continuity  in  the  policy  of  the 
board  entailed  by  the  coincident  retirement  of  such  members 
at  the  end  of  their  terms  of  political  office.  Such  ex  officio 
political  boards  were  deemed  proper  and  sufficient  at  a  time 
when  the  principal  function  of  such  boards  was  the  manage- 

305 


AMERICAN  STATE  ADMINISTRATION 

ment  of  school  funds  and  lands,  but  they  are  now  found  in 
comparatively  few  states. 

Boards  composed  of  ex  officio  educational  officers  are  now 
found  in  a  number  of  states.  The  Indiana  board  is  composed 
almost  entirely  of  this  class  of  members.  The  Illinois  Educa- 
tional Commission  proposed,  in  1908,  the  creation  of  a  state 
board  of  education,  consisting  of  the  state  superintendent  as 
ex  officio  chairman,  and  representatives  of  each  of  the  follow- 
ing school  interests,  to  be  selected  by  the  governor,  with  the 
approval  of  the  senate:  The  University  of  Illinois,  the  State 
Normal  Schools,  the  non-state  colleges  and  universities,  the 
city  superintendency,  the  county  superintendency,  the  public 
high  schools,  the  non-state  high  schools,  the  state  elementary 
schools,  the  non-state  elementary  schools,  and  two  eminent  citi- 
zens of  the  state  not  directly  engaged  in  educational  work. 
They  were  to  serve  for  an  eight-year  term  and  receive  no  com- 
pensation except  for  expenses.  The  composition  of  the  pro- 
posed board  has  many  merits,  though  it  might  be  criticized 
on  the  ground  that  a  board  of  eleven  members  in  addition  to 
the  state  superintendent  is  apt  to  be  unwieldy,  and  that  there 
is  too  great  a  preponderance  of  educators  on  the  board.  It 
would  probably  be  better  to  reduce  the  size  of  the  board  by 
eliminating  the  representatives  of  the  non-state  high  schools 
and  elementary  schools,  thus  increasing  the  relative  weight  of 
the  non-educators  on  the  board.  In  California,  where  no  sal- 
aried educational  officer  is  eligible  to  membership  on  the  board, 
the  tendency  towards  the  other  extreme  of  purely  lay  control 
is  apparently  carried  too  far. 

The  second  class  of  boards,  with  respect  to  their  composi- 
tion, are  the  appointive  boards.  In  only  one  state,  Michigan, 
is  the  board  chosen  by  popular  vote,  and  this  board  has  com- 
paratively small  powers.  In  order  to  secure  a  non-partisan 
board,  popular  election  should  be  avoided.  In  four  states, 
New  York,  Connecticut,  Rhode  Island,  and  Virginia,  the  board 
is  appointed  by  the  legislature,  while  in  the  other  states  having 

306 


THE  ADMINISTRATION  OF  EDUCATION 

appointive  boards,  this  function  is  performed  by  the  governor. 

In  some  states  there  are  composite  boards,  having  both  ex 
officio  and  appointive  members.  There  are  twenty-two  states 
in  which  the  governor  appoints  some  or  all  the  members  of 
the  boards.  With  a  view  to  preventing  undue  political  con- 
trol of  the  boards,  the  terms  of  appointive  members  are  gen- 
erally made  longer  than  that  of  the  governor,  and  provision 
is  made  whereby  they  may  expire  in  rotation. 

With  respect  to  their  powers  and  duties,  the  various  state 
boards  of  education  may  be  classified  as  follows :  those  which 
have  supervision  only  over  the  common-school  system  proper, 
those  which  have  supervision  only  over  special  or  advanced 
institutions,  such  as  normal  schools  and  agricultural  colleges, 
and  those  which  have  supervision  over  both  the  common-school 
system  and  the  advanced  or  special  institutions.  In  addition, 
there  are,  in  many  states,  managing  boards  of  trustees  placed 
over  a  single  state  educational  institution,  and  state  boards 
entrusted  with  some  special  function  relating  to  the  state  edu- 
cational system,  such  as  state  examining  boards  and  textbook 
commissions.  Of  the  state  boards  of  education  proper,  the 
most  influential,  as  a  rule,  are  those  which  have  supervision 
over  both  the  elementary  schools  and  higher  educational  insti- 
tutions, as  in  New  York,  Oklahoma  and  Vermont.  The  New 
York  board,  known  as  the  Regents  of  the  University  of  the 
State  of  New  York,  is  the  oldest  in  the  country,  having  been 
created  in  1784.  It  is  composed  of  twelve  members,  one  of 
whom  is  elected  annually  by  the  legislature  for  twelve-year 
terms.  To  this  board  are  entrusted  large  powers  of  manage- 
ment and  supervision  of  all  the  public  schools  and  the  entire 
educational  work  of  the  state. 

A  state  board  of  education  with  large  powers,  such  as  that 
of  New  York,  tends  to  add  dignity  and  strength  to  the  manage- 
ment of  the  school  affairs  of  the  state.  The  work  of  a  state 
department  of  education  may  be  broadly  divided  into  financial 
or  business,  and  educational  or  professional  functions.     Of 

307 


AMERICAN  STATE  ADMINISTRATION 

these  two  classes  of  functions,  the  former  are  more  suitable 
for  exercise  by  a  board,  especially  if  composed,  at  least  in  part, 
of  lay  members.  A  board  is  better  qualified  to  exercise  gen- 
eral supervision  over  the  strictly  educational  activities  of  the 
state,  rather  than  direct  choice  and  control.  A  state  board's 
most  important  function  of  an  educational  character  should  be 
the  selection  of  the  administrative  expert  to  be  placed  at  the 
head  of  the  educational  system  of  the  state,  but,  unfortunately, 
in  only  a  few  of  the  more  advanced  states,  such  as  New  York, 
Massachusetts  and  Connecticut,  does  it  actually  possess  this 
power.  Whatever  the  method  of  selecting  the  executive  head 
of  the  school  system,  there  are  many  problems  which  come 
before  him  which  he  could  be  assisted  in  solving  through  the 
advice  and  counsel  of  the  state  board.  The  executive  head 
may  be  assisted  in  carrying  out  an  advanced  and  enlightened, 
but  unpopular,  policy  through  the  moral  support  of  the  board. 
The  board  should  act  as  a  unifying  and  coordinating  agency 
for  all  educational  authorities.  It  should  not  undertake  the 
active  supervision  of  the  public  school  system  or  the  direct 
management  of  the  state  educational  institutions.  It  should 
rather  form  an  advisory  council  for  considering  the  broad 
questions  of  educational  policy,  and  the  interrelations  between 
the  different  educational  agencies  in  the  state. 

An  executive  or  administrative  head  of  the  state  school 
system  is  found  in  all  of  the  states.  Formerly,  he  was  fre- 
quently known  as  the  commissioner  of  free  or  common  schools, 
but  in  thirty-one  states  he  is  now  known  as  the  superintendent 
of  public  instruction,  which  title  indicates  the  broadening  con- 
ception of  the  scope  of  his  functions.  In  eight  states  he  bears 
the  title  of  superintendent  or  commissioner  of  education,  which 
represents  a  still  more  advanced  conception  of  the  office.  In 
Connecticut  he  is  called  simply  the  secretary  of  the  state  board 
of  education.  This  office  arose  during  the  first  half  of  the 
nineteenth  century,  a  state  superintendent  of  common  schools 
having  been  provided  for  in  New  York  as  early  as  1812.    In  a 

308 


THE  ADMINISTRATION  OF  EDUCATION 

number  of  states,  such  as  Illinois,  Louisiana,  and  Vermont,  the 
work  of  the  chief  state  school  officer  was  originally  considered 
to  be  of  such  small  importance  that  it  could  be  satisfactorily 
performed  by  one  of  the  existing  state  officers,  such  as  the 
secretary  of  state.  In  such  states  this  officer  was  consequently 
designated  ex  officio  superintendent  of  public  instruction.  As 
the  duties  of  the  office  increased,  however,  the  secretary  of 
state  found  it  necessary  to  delegate  the  work  to  a  subordinate  or 
special  deputy,  and  finally  a  separate  state  school  officer  was 
created. 

The  methods  adopted  for  the  selection  of  the  state  superin- 
tendent are  popular  election  in  thirty-three  states,  appointment 
by  the  governor  in  ten  states  and  appointment  by  the  state 
board  of  education  in  the  remaining  five.  It  was  natural,  both 
on  account  of  the  origin  of  the  office  and  also  on  account  of 
the  general  tendencies  of  the  times,  that  popular  election  should 
have  been  adopted  in  the  majority  of  the  states.  Several 
weighty  objections,  however,  may  be  urged  against  this  method 
of  selection.  The  state  superintendent  should  be  an  educa- 
tional expert,  but  it  is  very  doubtful  whether  popular  election 
is  the  method  best  calculated  to  secure  this  result.  This  ques- 
tion is  naturally  involved  in  the  broader  question  of  introduc- 
ing a  short  ballot  for  the  state  by  making  all  or  nearly  all  of 
the  chief  executive  officers  or  heads  of  departments  appointive 
instead  of  elective.  If  the  selection  were  really  made  by  the 
people  as  a  whole,  it  probably  would  not  as  a  rule  secure  ex- 
perts, but  it  would  have  the  compensating  advantage  of  stimu- 
lating public  interest  in  educational  matters.  But,  in  reality, 
selection  by  popular  vote  does  not  insure  a  choice  by  the  whole 
people,  but  merely  by  the  person  or  comparatively  small  group 
of  persons  who  select  the  minor  candidates  of  the  party  which 
turns  out  to  have  the  plurality  of  votes  in  the  election.  The 
method  of  popular  election  of  the  state  superintendent  thus 
tends  to  lengthen  the  state  ballot  where  it  should  be  shortened, 
and  contains  a  possibility,  at  least,  of  injecting  political  con- 

309 


AMERICAN  STATE  ADMINISTRATION 

siderations  where  they  should  not  be  allowed  to  enter.  The 
provision  of  the  Illinois  Constitution  that  the  state  superin- 
tendent should  be  elected  midway  between  general  elections  for 
other  state  officers  indicated  a  recognition  on  the  part  of  the 
framers  of  that  instrument  of  the  desirability  of  keeping  him 
as  far  as  possible  out  of  politics,  and  was  an  effort  on  their 
part  to  effect  that  object.  To  some  extent  it  has  undoubtedly 
done  so ;  yet,  under  present  conditions,  it  is  impossible  for  the 
best  man  for  the  position  in  respect  to  ability,  experience  and 
attainments  to  secure  the  position  if  he  happens  to  belong  to 
the  opposite  political  party  to  that  in  power.  It  is,  of  course, 
true  that  such  a  man  would  not  always  be  secured  even  by  the 
method  of  appointment  by  the  governor,  but  it  is  probable 
that  he  would  be  more  often  secured  by  this  method. 

Appointment  by  the  governor  or  by  the  state  board  of  educa- 
tion would  have  the  advantage  of  making  it  possible  to  bring 
to  the  position  a  man  from  outside  the  state,  if  a  better  man 
could  be  secured  in  this  way.  Residence  in  the  state  is,  of 
course,  a  qualification  of  value  which  ought  to  be  considered, 
because,  other  things  being  equal,  a  resident  is  more  familiar 
with  the  conditions  with  which  he  will  have  to  deal.  But 
there  may  be  other  qualifications,  such  as  executive  ability  and 
professional  attainments,  which  are  of  more  importance  and 
which  outweigh  the  disadvantage  of  non-residence.  Under  the 
system  of  popular  election,  even  though  residence  is  not  pre- 
scribed as  a  legal  qualification,  a  non-resident,  no  matter  what 
his  attainments,  would  seldom  if  ever  stand  any  chance  ofi 
securing  the  position.  Yet,  it  would  certainly  seem  that  there 
should  be  no  tariff  wall  around  the  state  to  prevent  the  im- 
portation of  professional  ability  in  the  management  of  schools. 
Cities  have  frequently  resorted  to  the  practice  of  securing  men 
from  the  outside  to  place  at  the  head  of  their  school  system, 
and,  as  a  result,  some  of  the  best  educators  in  the  country  are 
now  occupying  positions  as  city  superintendents  of  schools  in 
cities  to  which  they  came  from  elsewhere.     The  same  plan  is 

310 


THE  ADMINISTRATION  OF  EDUCATION 

frequently  followed  by  boards  of  trustees  of  universities  in 
selecting  a  president  for  the  institution  and  by  business  con- 
cerns in  selecting  managers.  It  would  seem  that  similar  advan- 
tages would  result  from  the  adoption  of  a  similar  practice  by 
the  states. 

Whether  the  state  superintendent  is  elective  or  appointive, 
it  would  seem  both  desirable  and  feasible  to  prescribe  for  him 
certain  qualifications  of  a  professional  character.  In  many 
states  which  have  made  no  such  provision,  qualifications  of  a 
professional  character  are,  as  a  matter  of  fact,  observed  in 
practice,  but  there  seem  to  be  advantages  in  expressly  con- 
firming this  principle  by  legislative  enactment,  and  half  a  dozen 
or  more  states  have  done  so.  The  qualifications  so  prescribed 
may  be  classified  as  definite  and  indefinite.  The  latter  class  is 
illustrated  by  the  requirement  in  Tennessee  that  the  superin- 
tendent must  be  a  "person  of  literary  and  scientific  attain- 
ments." The  purpose  of  such  a  provision,  on  account  of  its 
indefinite  character,  is  liable  to  be  defeated.  The  better  provi- 
sions would  seem  to  be  those  of  a  definite  character,  such  as 
are  found  in  Wisconsin  and  Montana.  In  Wisconsin  it  is  de- 
clared that  "no  person  shall  be  eligible  to  the  office  of  state 
superintendent  of  public  instruction  who  shall  not  have  taught 
or  supervised  teaching  in  the  state  of  Wisconsin,  for  a  period 
of  not  less  than  five  years,  and  who  shall  not  hold  the  highest 
grade  of  certificate  which  the  state  superintendent  is  by  law 
empowered  to  issue."  In  Montana  it  is  provided  that  the 
superintendent  of  public  instruction  "shall  have  attained  the 
age  of  30  years  and  shall  have  resided  within  the  state  two 
years  next  preceding  his  election,  and  be  the  holder  of  a  state 
certificate  of  the  highest  grade,  issued  in  some  state,  or  a 
graduate  of  some  reputable  university,  college  or  normal 
school."  The  principle  of  requiring  professional  qualifications 
is  more  important  than  the  exact  details  of  the  requirements. 

The  prevalent  practice  of  electing  the  state  superintendent  by 
popular  vote  has  an  unfortunate  influence  upon  his  term,  com- 

311 


AMERICAN  STATE  ADMINISTRATION 

pensation,  and  relation  to  the  state  board  of  education.  By 
analogy  with  the  practice  in  the  case  of  other  state  political 
officers,  he  is  ordinarily  elected  for  a  definite  term  of  office. 
For  popularly  elected  superintendents,  this  term  is  invariably 
either  two  or  four  years.  The  principle  of  rotation  in  office, 
formerly  thought  desl.able  in  the  case  of  political  offices,  is 
specifically  provided  for  in  one  state,  Alabama,  where  the  super- 
intendent is  ineligible  to  succeed  himself.^  Even  in  states 
where  no  such  legal  provision  is  found,  rotation  of  elected 
superintendents  is  often  followed  in  practice  through  the  peri- 
odical overturn  of  political  parties.  The  superintendent's  term 
may  thus  be  brought  to  an  end  without  any  regard  whatever 
to  the  fact  that  he  has  filled  the  office  with  signal  ability,  while, 
on  the  other  hand,  if  his  party  happens  to  be  returned  to  power, 
he  may  continue  in  office  even  though  his  record  has  been 
poor.  In  either  case  the  short  term  of  office  and  the  uncer- 
tainty of  reelection  discourage  the  formation  of  a  continuous 
educational  policy  or  of  farseeing  plans  for  the  betterment  of 
the  school  system  of  the  state.  In  some  of  the  states  where 
the  superintendent  is  appointive,  a  realization  of  these  facts 
has  brought  about  a  modification  of  the  short,  definite  term  of 
office.  Thus,  in  New  Jersey  and  Massachusetts  his  term  is 
five  years,  while  in  New  York  and  New  Hampshire  he  serves 
for  an  indefinite  term. 

The  salary  of  the  state  superintendent  is  in  every  case  a 
definite  amount,  fixed  by  law,  varying  from  $i,8oo  in  South 
Dakota  to  $10,000  in  New  York  and  New  Jersey.  Where 
the  salary  is  thus  fixed  before  the  officer  is  selected,  it  is  dif- 
ficult to  adjust  the  amount  to  the  professional  abilities  and 
qualifications  of  the  incumbent.  The  tradition  of  definite  sal- 
aries for  elective  officers  is  so  well  established  that  it  would 
scarcely  be  practicable  to  make  a  change,  but,  in  the  case  of 
appointive  superintendents,  it  would  be  better  for  the  law  to 
provide  merely  the  maximum  and  minimum  salary  limits,  the 

'Constitution  of  Alabama,  Sect.  116. 

312 


THE  ADMINISTRATION  OF  EDUCATION 

exact  amount  within  such  Hmits  to  be  fixed  by  the  appointing 
authority. 

As  already  pointed  out,  in  states  having  a  state  board  of 
education,  the  state  superintendent  should  be  appointed  by  the 
board  and  should  act  as  the  executive  officer  of  the  board. 
The  independent  tenure  of  the  superintendent  produced  by 
the  practice  of  electing  him  by  popular  vote  may  render  diffi- 
cult of  attainment  that  degree  of  close  cooperation  between 
the  board  and  the  superintendent  which  is  desirable.  The 
superintendent  should  not,  of  course,  be  so  dependent  upon 
the  board  that  he  has  no  will  or  initiative  of  his  own.  While 
he  should  be  subject  to  removal  by  the  board  for  cause,  this 
should  not  be  possible  except  at  the  end  of  annual  periods  and 
then  only  by  more  than  a  bare  majority  of  the  total  member- 
ship of  the  board. 

The  state  superintendent  should  have  the  privilege  of  select- 
ing his  own  assistant  superintendents  and  expert  staff,  subject 
to  the  approval  of  the  state  board.  The  organization  of  the 
superintendent's  office  should  bear  a  rather  close  relation  to 
the  number  and  extent  of  the  functions  to  be  performed.  The 
work  should  be  divided  according  to  some  logical  scheme  of 
classification,  and  each  division  of  work  placed  in  a  separate 
bureau  with  one  assistant  superintendent  assigned  to  each  de- 
partment or  to  a  group  of  related  bureaus  according  as  the 
amount  of  work  may  demand  or  the  number  of  available  offi- 
cials may  allow.  Care  should  be  taken  to  keep  separate,  as  far 
as  practicable,  the  work  of  the  office  which  is  of  a  strictly  edu- 
cational nature  from  that  which  is  more  of  a  business  charac- 
ter. In  some  states  there  are  a  number  of  officials  in  the  central 
educational  department  whose  functions  have  become  definitely 
and  expressly  specialized.  Thus,  in  California,  there  is  a  com- 
missioner of  secondary  schools,  a  commissioner  of  elementary 
schools  and  a  commissioner  of  industrial  and  vocational  educa- 
tion. In  New  York,  a  large  part  of  the  work  is  divided  into 
the  following  divisions,  at  the  head  of  each  of  which  is  a  chief : 

313 


AMERICAN  STATE  ADMINISTRATION 

history,  law,  public  records,  science,  vocational  schools,  exam- 
inations, administration,  attendance,  inspections,  educational 
extension,  school  libraries,  visual  instruction  and  statistics. 
There  are  also  the  director  of  the  state  library,  the  secretary 
of  the  teachers'  retirement  fund  board,  and  the  specialists  in 
agriculture  and  in  vocational  education  for  girls,  besides  nu- 
merous inspectors.  In  many  other  states,  however,  very  slight 
tendencies  toward  specialization  of  function  can  be  discerned. 
There  is  not  only  a  need  for  the  careful  organization  of  the 
office  of  the  central  department  of  education,  but  also  for  a 
field  force  to  serve  as  antennae  to  keep  the  central  office 
informed  as  to  educational  conditions  and  developments  in  all 
parts  of  the  state.  This  object  may,  in  general,  be  attained  in 
either  or  both  of  two  ways:  first,  by  assigning  to  some  officer 
of  the  central  department  supervision  in  all  parts  of  the  state 
over  some  special  phase  of  educational  activity,  such  as  the 
enforcement  of  the  school  attendance  law ;  or,  secondly,  by 
dividing  the  state  into  districts  and  stationing  in  each  district 
a  representative  of  the  central  department  with  supervisory 
powers  of  a  general  educational  character.  The  first  method 
embodies  specialization  as  to  a  particular  educational  process; 
the  second,  specialization  as  to  a  particular  geographical  sec- 
tion of  the  state.  It  cannot  be  said  that,  with  respect  to  most 
of  the  states,  either  of  these  methods  has  as  yet  been  developed 
to  any  great  extent.  The  utilization  of  local  school  officers, 
such  as  county  superintendents,  in  carrying  out  the  second 
method  specified  is  scarcely  feasible  in  most  states,  on  account 
of  the  general  lack  of  central  control  over  such  officers  and 
their  consequent  inefficiency  in  performing  their  duties.  Such 
inefficiency  of  local  supervision  has  at  times  been  largely  re- 
sponsible for  the  creation  of  state  central  officers  with  special 
educational  functions,  such  as  the  state  inspectors  of  rural 
schools  in  Minnesota,  Illinois  and  other  states. 

The  functions  of  the  state  superintendent  vary  in  different 
states,  but,  in  general,  they  may  be  classified  into  (a)  super- 

314 


THE  ADMINISTRATION  OF  EDUCATION 

visory,  (b)  advisory  and  judicial,  and  (c)  administrative  and 
financial.  In  the  first  class  would  fall  his  powers  to  visit  the 
schools,  to  require  reports  from  county  superintendents  and 
other  local  officers,  to  collect  school  statistics,  and  to  make  rules 
and  regulations  for  carrying  into  effect  the  provisions  of  the 
school  law.  In  the  second  class  is  included  his  power  to  advise 
local  school  officers  as  to  educational  matters  and  also  as  to  the 
interpretation  of  the  school  law.  In  many  states  he  has  judi- 
cial power  to  decide  appeals  brought  to  him  from  the  action 
of  local  school  officers  and  boards.  An  appeal  may  usually  be 
taken  from  the  decision  of  the  superintendent  to  the  judicial 
courts,  but  in  New  York  the  decision  of  the  state  commis- 
sioner of  education  in  school  controversies  is  final  and  con- 
clusive.* Among  the  administrative  and  financial  powers  of 
the  superintendent  are  those  of  examining  teachers,  granting 
and  revoking  certificates,  recommending,  or,  in  some  states, 
prescribing  textbooks  and  courses  of  study,  and  serving  as  ex 
officio  member  of  the  boards  of  trustees  of  various  state  educa- 
tional institutions.  In  a  number  of  states,  he  appoints  con- 
ductors of  teachers'  institutes,  in  one  or  two  states  he  ap- 
points certain  local  school  officers,  in  West  Virginia  he 
appoints  the  state  board  of  education,  and  in  Ohio  the  state 
board  of  examiners.  He  is  frequently  authorized  to  distribute 
state  funds  to  the  localities,  and,  in  some  states,  may  withhold 
such  funds  from  localities  which  fail  to  comply  with  certain 
laws,  rules  or  regulations  issued  by  state  authority. 

The  actual  influence  exerted  by  the  state  superintendent 
may  be  more  or  less  than  an  enumeration  of  his  legal  powers 
would  indicate,  depending  largely  upon  the  energy  and  ability 
with  which  he  discharges  his  duties.    He  should  be,  both  from 

*  In  New  York  it  has  been  held  that  the  remedy  of  a  teacher  removed 
by  a  city  board  of  education  for  alleged  neglect  of  duty  is  not  by 
mandamus  but  by  appeal  to  the  state  commissioner  of  education. 
People  ex  rel.  Peixotto  vs.  Board  of  Education,  145  N.  Y.  Sup.,  853. 
Cf.  the  similar  Maryland  case.  Board  of  School  Commissioners  of 
Caroline  vs.  Morris,  91  Atl.,  718. 


AMERICAN  STATE  ADMINISTRATION 

the  standpoint  of  legal  power  and  from  that  of  professional 
attainments,  one  of  the  principal  educational  leaders  of  the 
state.  While  there  have  been  and  are  many  notable  excep- 
tions, it  is  still  too  frequently  true  that  the  superintendent 
exerts  no  great  influence  upon  the  educational  system  of  the 
state,  but  occupies  rather  the  position  of  a  clerical  or  statis- 
tical officer,  with  merely  advisory  powers.  There  would  seem 
to  be  a  need  in  many  states  for  an  increase  of  his  powers  and 
a  strengthening  of  the  powers  which  he  already  possesses. 
The  following  passage,  though  written  with  special  reference 
to  conditions  in  Illinois,  is  almost  equally  applicable  to  many 
other  states : 

"If  the  efficiency  of  the  school  system  is  to  be  increased, 
one  of  the  most  essential  means  to  that  end  is  an  increase  in 
the  power  of  control  vested  in  the  central  department  of  educa- 
tion. If  the  desideratum  laid  down  in  the  Constitution  that 
the  children  of  the  state  shall  receive  a  good  common  school 
education  is  to  be  realized  and  if  the  duty  laid  upon  the  Gen- 
eral Assembly  by  the  Constitution  that  there  shall  be  provided 
a  thorough  and  efficient  system  of  free  schools  is  to  be  per- 
formed, then  the  local  autonomy  and  freedom  from  control  of 
the  local  school  officials  in  managing  schools  must  not  be  al- 
lowed to  extend  to  such  a  degree  as  to  defeat  the  will  of  the 
state  as  thus  solemnly  expressed  in  its  organic  law.  At  the 
present  time  the  state  superintendent  has  neither  direct  nor 
express  supervisory  power  over  many  important  educational 
processes  and  matters  connected  with  the  operation  of  the 
schools,  and  such  matters  are  therefore  left  to  the  practically 
unregulated  control  of  local  school  officials.  Among  such 
matters  may  be  mentioned  the  arrangement  and  sanitation  of 
school  buildings,  the  fixation  of  teachers'  salaries,  the  enforce- 
ment of  the  attendance  of  school  children,  the  selection  of  text- 
books and  determination  of  the  course  of  study,  and  the  ap- 
pointment of  the  conductors  of  teachers'  institutes.  There  are 
other  needed   processes,   such   as   the  medical   inspection   of 

316 


THE  ADAIINISTRATION  OF  EDUCATION 

school  children,  which  are  scarcely  done  at  all,  because  of  the 
inertia  of  the  localities  and  the  lack  of  power  of  the  central 
authorities. 

"That  some  improvement  can  be  brought  about  in  the  con- 
duct of  such  matters  by  the  localities  by  means  of  recommend- 
ations, advice,  publicity  and  the  dissemination  of  information 
cannot  be  denied,  and  much  has  undoubtedly  been  accom- 
plished in  Illinois  in  this  direction.  Where  local  officials  are 
well  intentioned  but  ignorant,  the  dissemination  of  information 
as  to  improved  methods  has  often  proved  effective  in  bringing 
about  improved  conditions.  It  results,  therefore,  that,  as  re- 
gards some  of  these  matters,  as,  for  example,  the  imposition 
of  a  state  course  of  study,  the  investment  of  the  state  superin- 
tendent with  actual  power  of  legal  control  would  merely  have 
the  effect  of  enabling  him  to  confirm  conditions  that  already 
exist  over  most  parts  of  the  state.  As  regards  other  conditions, 
however,  which  cry  out  for  remedy,  the  state  superintendent 
is  reduced  to  the  impotence  of  vainly  issuing  circulars  and 
letters  to  local  school  officials,  in  which  he  humbly  begs  to  call 
their  attention  to  the  vital  need  of  safeguarding  the  health  of 
school  children  by  the  improved  sanitation  of  school  buildings 
or  the  installation  of  improved  kinds  of  desks  and  other  furni- 
ture. If  the  admonitions  of  the  state  superintendent  are  not 
observed,  he  can  do  nothing  further.  The  question  may  well  be 
raised  whether  the  taxpayers  have  not  the  right  to  protest 
against  the  spending  by  the  state  of  large  sums  of  money  on 
public  education,  unless  the  state  goes  further  and  sees  to  it 
that  the  proceeds  of  the  taxes  are  expended  in  the  most  efficient 
manner  possible  under  the  circumstances,  so  that  the  educa- 
tional facilities  extended  to  each  school  child  shall  be  the  best 
and  most  improved  that  can  be  supplied  under  present  condi- 
tions. It  would  not,  of  course,  be  feasible  or  desirable,  with 
regard  to  most  matters,  for  direct  management  of  educational 
processes  to  be  taken  out  of  the  hands  of  the  local  officials  and 
centralized  in  the  state  department.     But  a  greater  amount  of 

317 


AMERICAN  STATE  ADMINISTRATION 

central  supervision  and  control  over  many  such  processes  seems 
both  feasible  and  desirable.  At  present  the  state  superintendent 
is  empowered  to  enforce  his  control  over  some  matters  by 
withholding  certain  funds  from  recalcitrant  local  officials.  This 
method  of  enforcement  is  open  to  objection,  however,  on  the 
ground  that,  if  exercised,  it  would  have  the  effect,  in  many 
cases,  of  bringing  hardships  upon  those  who  are  in  no  way  to 
blame  for  the  delinquencies  of  the  school  officials,  namely  the 
teachers  and  school  children,  whose  interest  it  should  be  the 
primary  aim  to  preserve  and  promote.  A  less  objectionable  and 
more  effective  means  of  enabling  the  state  superintendent  to 
enforce  his  rules,  regulations  and  decisions  would  be  to  vest 
him  with  the  power  to  suspend  or  even  to  remove  such  local 
officials  as  may  disobey  such  rules  and  decisions  or  be  guilty  of 
flagrant  neglect  of  their  official  duties.  Nevertheless,  however 
desirable  theoretically  such  a  method  of  enforcement  may  be, 
it  is  doubtful  whether  centralized  control  to  such  an  extent 
would  be  tolerated  in  the  present  state  of  public  opinion  in 
Illinois. 

"Until  public  opinion  shall  become  educated  up  to  a  greater 
realization  of  the  desirability  of  central  control,  it  is  probable 
that  the  state  superintendent  will  have  to  continue  to  depend, 
for  effecting  improvement  in  many  matters,  upon  recommenda- 
tions, publicity  and  widespread  dissemination  of  information."^ 
Improvement  in  the  management  of  the  local  schools  and  a 
greater  degree  of  central  control  could  probably  be  brought 
about  by  a  closer  relation  and  more  effective  cooperation  be- 
tween the  state  superintendent  and  the  county  superintendents, 
and  also  by  greater  contact  and  association  of  the  county 
superintendents  with  each  other.  The  supervision  of  the  county 
superintendent  over  the  schools  in  his  county  will  tend  to  be- 
come more  efficient  if  he  is  given  or  required  to  take  more 
opportunities  of  coming  in  contact  with,  and  imbibing  ideas 

^Report  of  the  Efficiency  and  Economy  Committee  of  Illinois,  pp. 
414-415. 

318 


THE  ADMINISTRATION  OF  EDUCATION 

from,  others  occupying  similar  positions  and  from  the  state 
superintendent.  In  North  Carolina  an  annual  conference  be- 
tween the  state  superintendent  and  the  county  superintendents 
is  held,  which  every  county  superintendent  is  required  by  law 
to  attend  unless  providentially  hindered,  his  expenses  being 
paid  out  of  the  county  school  fund.  The  state  is  divided  into 
five  districts  of  twenty  counties  each,  and  there  is  also  an  an- 
nual conference  in  each  district  attended  by  the  state  superin- 
tendent and  the  county  superintendents  of  that  district.  Each 
county  superintendent,  then,  has  the  opportunity  of  attending 
a  conference  with  the  state  superintendent  at  least  twice  a  year. 
Local  autonomy  in  school  matters  is  still  the  prevailing  con- 
dition, and,  under  proper  restrictions,  is  desirable  in  order  to 
strengthen  the  interest  of  the  people  in  their  schools.  But 
when  carried  too  far,  the  evils  of  local  control  outweigh  any 
possible  advantages.  Such  undue  local  control  cannot  be  effec- 
tively overcome  through  the  creation  of  the  usual  formal  legal 
interrelations  between  the  state  superintendent  and  the  county 
superintendents,  such  as  the  transmission  of  statistical  infor- 
mation and  the  taking  of  appeals  in  cases  involving  the  inter- 
pretation of  the  school  laws.  Effective  state  control  is  more 
easily  exercised  where  there  exists  an  administrative  relation 
between  the  state  superintendent  and  the  county  superintend- 
ents. Some  tendencies  in  this  direction  are  noticeable  in  some 
states.  Thus,  in  New  York,  Virginia,  and  Nevada,  where  the 
jurisdiction  of  the  officer  corresponding  to  the  county  super- 
intendent is  not  coextensive  with  the  county,  we  have  the 
opening  wedge  toward  central  control,  because  local  control  is 
not  so  likely  to  be  exercised  over  an  officer  of  a  district  not 
generally  used  for  other  local  governmental  purposes.  The 
most  advanced  state,  however,  in  respect  to  central  control  over 
the  county  superintendent  is  New  Jersey,  where  the  county 
superintendent  is  appointed  by  the  state  commissioner  of  edu- 
cation, with  the  advice  and  consent  of  the  state  board  of  edu- 
cation.   He  may  be  a  resident  of  any  part  of  the  state,  and  his 

319 


AMERICAN  STATE  ADMINISTRATION 

uniform  salary  of  $3,000  is  paid  by  the  state.  The  county 
superintendent  in  this  state  is  therefore  in  reaHty  what  has 
been  called  an  "allocated  state  inspector."  ^ 

An  important  means  of  extending  and  strengthening  state 
control  over  the  local  management  of  the  school  system  is 
through  the  policy  of  state  financial  aid.  This  method  of  state 
control  has  developed  hand  in  hand  with  the  establishment  of 
state  central  educational  authorities.  The  policy  of  granting 
state  aid  to  localities  for  educational  purposes  carries  with  it 
the  implication  that  the  exercise  of  educational  functions  by 
such  localities  is  more  than  a  matter  of  mere  local  concern. 
It  also  implies  that  the  state  should  follow  the  funds  thus 
granted  to  see  that  they  are  properly  and  efficiently  expended, 
and  this  means  the  entering  wedge  of  state  control.  In  most 
states  the  support  of  the  public  schools  still  comes  largely  from 
local  taxes,  but  the  proportion  of  the  total  expenditure  con- 
tributed by  the  states  is  steadily  increasing.  In  Massachusetts 
it  has  even  been  proposed  that  the  public  schools  be  supported 
entirely  by  state  funds.  State  financial  aid  may  be  in  the 
form  of  income  from  a  permanent  fund  or  endowment  or  may 
be  appropriated  out  of  the  proceeds  of  current  taxes.  It  may 
be  distributed  regularly  among  the  localities  on  a  specified 
basis  of  apportionment,  or  it  may  be  granted  on  condition  of 
the  adoption  and  maintenance  of  certain  specified  educational 
standards.  The  first  method  aims  to  equalize  conditions  among 
the  localities  and  to  assist  them  in  performing  necessary  educa- 
tional activities ;  the  second  undertakes  to  supply  a  definite 
incentive  to  stimulate  the  localities  to  supply  still  better  educa- 
tional facilities,  somewhat  along  the  line  of  the  English  "pay- 
ment-by-results" plan  of  distributing  funds  to  the  localities. 

There  is  a  considerable  variation  in  the  bases  of  apportion- 
ing school  funds  adopted  in  dififerent  states.  Among  the  bases 
adopted  are  the  assessed  valuation  of  property,  amount  of 

*  O.  J.  Morelock,  in  Proceedings  of  the  National  Education  Associa- 
tion, 1914,  p.  260. 

320 


THE  ADMINISTRATION  OF  EDUCATION 

taxes  paid,  total  population,  school-age  population,  school  en- 
rollment, school  attendance,  number  of  schools,  number  of 
teachers  employed,  local  expenditures  for  schools,  and  various 
combinations.  The  basis  of  school-age  population  is  that  most 
frequently  found,  but  is  objectionable  in  that  it  neither  equal- 
izes conditions  nor  stimulates  effort.  These  objects  might  be 
better  attained  by  a  combination  of  actual  school  attendance 
with  the  number  of  teachers  employed.  State  apportionments 
to  counties  may  in  turn  be  redistributed  to  school  districts,  but 
not  necessarily  on  the  same  basis  as  the  original  state  appor- 
tionment. State  funds  may  be  withheld  from  particular  locali- 
ties which  fail  to  comply  -with  the  conditions  laid  down  by  the 
state,  such  as  the  maintenance  of  schools  for  a  given  minimum 
period  during  the  year,  the  employment  of  properly  qualified 
teachers  and  the  payment  to  them  of  minimum  salaries,  and 
the  prompt  transmission  of  accurate  school  statistics  to  the 
central  authorities.  School  authorities  in  the  more  advanced 
parts  of  the  state,  particularly  in  the  cities,  may  voluntarily 
keep  their  schools  at  a  standard  far  beyond  the  minimum  re- 
quirement set  by  the  state,  but  in  the  case  of  the  rural  and 
more  backward  communities,  the  possibility  of  losing  their 
share  of  the  state  funds  may  be  more  effective  than  compul- 
sory legislation  in  keeping  them  up  to  the  state  standard.  The 
withholding  of  funds,  however,  is  a  power  which  is  seldom 
found  necessary  to  exercise. 

A  corollary  which  naturally  flows  from  the  policy  of  the 
states  in  establishing  free  public  schools  is  the  enactment  by 
the  states  of  compulsory  attendance  laws.  Since  it  costs  little 
more  to  maintain  schools  with  full  attendance  than  with  poor 
attendance,  economy  of  expense  per  unit  of  educational  result 
is  enhanced  in  proportion  to  the  degree  of  attendance.  Com- 
pulsory education  has  in  the  past  met  with  much  opposition  in 
certain  quarters  where  it  has  been  denounced  as  un-American 
and  an  undue  interference  by  the  state  with  individual  liberty. 
This  is  merely  one  of  many  instances,  however,  where  social 

321 


AMERICAN  STATE  ADMINISTRATION 

necessity  must  override  individual  rights  where  the  exercise  of 
such  rights  may  be  detrimental  to  the  best  interests  of  the 
state.    The  principle  of  compulsory  education  was  declared  by 
Massachusetts  and  Connecticut  in  the  early  colonial  era,  but 
the  first  modern  state  law  on  the  subject  was  enacted  by  Massa- 
chusetts in   1852,     The  movement  has  since  spread  until,  at 
the  present  time,  such  laws  are  found  in  all  but  one  or  two 
states.     These  laws  vary  considerably  in  the  ages  of  required 
attendance,  the  annual  term  of  required  attendance,  the  excep- 
tions allowed  under  the  rules,  and  the  methods  of  enforcement. 
In  most  instances  the  states  have  been  content  with  a  legislative 
declaration  in  favor  of  compulsory  education,  without  making 
adequate  administrative  provision  for  the  enforcement  of  the 
laws.     Although  the  laws  are  being  continually  amended  and 
strengthened  they  are  still  weak  in  most  states.     In  only  one 
state,  Connecticut,  is  adequate  provision  made  for  enforcement 
by  agents  of  the  state  department  of   education.     In  other 
states  the  duty  of  enforcement  devolves  upon  local  officers, 
either  truant  officers  especially  charged  with  this  function  or 
the  ordinary  police   force,   sheriffs,   and   constables.     Central 
supervision  over  the  enforcement  of  the  law  by  such   local 
officers,  however,  is  provided  in  some  states  as  in  Indiana, 
through  the  state  board  of  truancy,  and  in  New  York,  through 
the  chief  of  the  division  of  compulsory  attendance  in  the  state 
education  department.     Some  influence  may  also  be  exerted 
through  the  possibility  of  withholding  state  funds  from  dis- 
tricts where  the  law  is  not  properly  enforced.     In  spite  of  the 
compulsory  attendance  laws,  however,  there  were,  according  to 
the  United  States  Census  of  1910,  only  eight  states  in  which 
the  percentage  of  children  between  six  and  fourteen  years  of 
age  attending  school  was  ninety  or  above.^     If  compulsory 
attendance  laws  are  generally  and  eft'ectively  enforced  for  one 
or  two  generations,  the  realization  of  the  advantages  of  educa- 

'  These    states    were    Connecticut,    Iowa,    Massachusetts,    Michigan, 
Nebraska,  New  Hampshire,  New  York,  and  Vermont. 

322 


THE  ADMINISTRATION  OF  EDUCATION 

tion  may  become  so  generally  diffused  that  the  laws  themselves 
may  largely  cease  to  be  necessary. 

One  difficulty  to  be  overcome  in  connection  with  the  adminis- 
tration of  compulsory  attendance  laws  is  that  of  securing  an 
harmonious  enforcement  of  child  labor  laws.  To  obviate  this 
difficulty  as  far  as  possible,  there  should  be  close  cooperation 
between  the  state  department  of  labor  or  factory  inspection 
and  state  or  local  officers  charged  with  the  enforcement  of  com- 
pulsory attendance  laws.  Another  difficulty  to  be  overcome  in 
attaining  an  effective  enforcement  by  the  state  of  compulsory 
attendance  laws  is  the  opposition  of  private  schools  to  state 
inspection.  Children  attending  private  or  parochial  schools  are 
regularly  exempted  from  the  operation  of  the  state  law.  But 
unless  the  state  authorities  are  informed  as  to  what  children 
are  attending  private  schools,  they  cannot  determine  the  degree 
of  effectiveness  with  which  the  compulsory  attendance  law  is 
being  enforced.  Furthermore,  the  general  interest  of  the  state 
in  the  education  of  its  children  would  warrant  some  degree  of 
governmental  supervision  over  the  work  of  private  schools.  A 
slight  tendency  in  this  direction  is  noticeable  in  some  states. 
Thus,  in  Connecticut,  private  schools  are  required  to  keep  a 
register  of  attendance,  open  to  inspection,  and  to  make  reports 
to  the  state  board  of  education.  In  a  number  of  states,  children 
attending  private  schools  are  exempt  from  the  operation  of  the 
compulsory  attendance  law  only  if  such  schools  are  in  session 
as  long  as  the  public  schools  and  give  substantially  equivalent 
instruction.  In  regard  to  private  institutions  of  higher  educa- 
tion, grants  of  state  aid  are  frequently  made,  but  little  adminis- 
trative supervision  is  exercised  over  them  by  the  states.  In 
New  York,  however,  they  are  subject  to  inspection  by  the  state 
department  of  education,  from  which  they  receive  their  char- 
ters of  incorporation  and  power  to  grant  degrees. 

From  the  policy  of  compulsory  education,  several  corollaries 
follow.  In  the  first  place,  if  minors  between  certain  ages  are 
to  be  compelled  by  the  state  to  attend  school,  then  it  is  the 


AMERICAN  STATE  ADMINISTRATION 

business  of  the  state  to  see  that  the  instruction  provided  in  the 
schools  is  suited  to  their  needs.    This  consideration  would  war- 
rant the  introduction  of  manual  training,  and  of  industrial  and 
vocational  training  for  certain  classes  of  pupils.     The  second 
corollary  to  be  derived  from  the  policy  of  compulsory  education 
is  that  the  school  building  and  its  surroundings  should  be  sani- 
tary and  attractive.     The  state  has  no  moral  right  to  compel 
pupils  to  attend  schools  where  the  conditions  and  environment 
are  unwholesome  and  detrimental  to  health,  eyesight  and  phys- 
ical, moral   or,   perhaps,   even   esthetic   development.      Many 
states  undertake  partially  to  prevent  or  remedy  such  conditions 
by  vesting  in  state  authorities  power  to  recommend  improved 
plans  and  specifications   for  school  buildings,  or  to  approve 
those  adopted  by  local  officers,  and  to  inspect  and  condemn  or 
correct  buildings  already  erected.     State-wide  medical  inspec- 
tion of  school  children  has  also  been  provided  for  in  some 
recent  laws.    The  state  authorities  vested  with  such  powers  are 
either  the  educational  or  health  authorities,  or  sometimes  both. 
The  Indiana  state  board  of  health  has  adopted  an  elaborate  set 
of  rules  and  regulations  for  the  construction^  heating,  lighting, 
ventilation  and  sanitation  of  school  buildings.^     It  has  con- 
demned a  considerable  number  of  school  buildings  which  failed 
to  meet  the  requirements  laid  down.     In  Wisconsin,  the  state 
department  of  education,  upon  complaint  of  the  unsanitary  or 
unsafe  condition  of  any  local  school  building,  may  inspect  such 
building  by  its  own  agents  and  order  its  repair  or  condemnation. 
Failure  on  the  part  of  the  local  school  authorities  to  comply 
with  the  order  of  the  state  department  may  result  in  the  for- 
feiture of  their  share  of  the  proceeds  of  the  state  tax  for 
school  purposes.     In  a  number  of  other  states,  however,  the 
laws  which  purport  to  provide  for  state  supervision  of  the  con- 
struction and  sanitation  of  school  buildings  are  rendered  weak 
and  ineffective  through  failure  of  the  legislature  to  make  appro- 

*  These  rules  and  regulations  have  been  held  to  have  the  force  and 
effect  of  law.     Blue  vs.  Beach  ct  al,  IS5  Ind.,  121. 

324 


THE  ADMINISTRATION  OF  EDUCATION 

priations  to  pay  the  expense  of  necessary  state  inspections  or  to 
provide  adequate  penalties  for  failure  on  the  part  of  the  local 
authorities  to  comply  with  the  orders  of  the  state  department. 

Another  corollary  which  may  be  derived  from  the  policy  of 
compulsory  education  is  the  practice  of  supplying  free  text- 
books, particularly  to  the  children  of  indigent  parents.  In 
fifteen  states  textbooks  are  supplied  without  charge,  at  least 
in  the  elementary  schools,  and  in  a  number  of  other  states  this 
plan  is  permitted  by  law.  In  such  states  contracts  with  the 
publishers  are  usually  made  by  a  state  board  for  supplying 
the  books  required,  but  two  states,  California  and  Kansas,  have 
undertaken  the  publication  of  their  own  textbooks.  Provisions 
are  found  in  most  of  the  states  for  a  certain  degree  of  uni- 
formity  in  the  textbooks  used  over  a  certain  area,  and  pro- 
hibiting the  changing  of  books  during  a  minimum  period  of 
time.  The  area  of  uniformity  is  either  the  district,  township, 
county,  or  the  state  itself.  One-half  of  the  states  have  now 
adopted  compulsory  state  uniformity.  In  others,  however,  state 
uniformity  may  in  practice  be  approximately  reached  through 
recommendations  of  the  state  educational  authorities.  In  order 
to  make  allowance  for  legitimate  differences  in  local  conditions 
and  needs,  and  at  the  same  time  retain  a  considerable  degree 
of  central  control,  some  states  provide  that  local  school  authori- 
ties shall  select  books  from  lists  approved  by  a  state  officer  or 
commission.  State  uniformity  implies  adoption  and  selection 
of  the  books  by  some  state  central  authority.  This  function 
is  performed  by  the  state  board  of  education  or  by  a  state 
textbook  commission  created  specially  for  this  purpose. 
Closely  connected  with  state  uniformity  of  textbooks  is  the 
prescription  of  courses  of  study  by  state  authority.  In  a  num- 
ber of  states  the  central  department  of  education  is  empow- 
ered to  prescribe  a  course  of  study  for  elementary  schools, 
while,  in  other  states,  the  central  department  has  prepared  and 
recommended  a  course  of  study,  which  has  been  adopted  by 
most  or  all  the  schools  in  the  state. 

325 


AMERICAN  STATE  ADMINISTRATION 

A  considerable  degree  of  central  control  has  also  been  ex- 
tended over  the  examination  and  certification  of  teachers.  A 
study  of  this  subject  made  in  191 1  showed  that  teachers'  cer- 
tificates, or  licenses  to  teach,  were  issued  in  all  states  except 
Delaware  by  state  authorities :  either  the  state  superintendent, 
the  state  board  of  education,  or  the  state  board  of  examiners. 
In  most  of  these  states,  certain  grades  of  certificates  might 
also  be  issued  by  local  authorities.  "The  tendency  in  the  de- 
velopment of  the  administration  of  teachers'  certificates  has 
been  and  is  toward  centralization  of  authority  in  state  agencies. 
Within  the  last  six  years  at  least  eighteen  states  have  passed 
legislation  which  produced  this  effect,  and  in  two-thirds  of 
these  a  new  era  was  entered  upon.  As  to  the  effect  of  cen- 
tralizing the  authority  to  certificate  teachers  in  state  agencies, 
there  seems  to  be  a  general  agreement  that  much  good  has  come 
from  it.  Higher  standards  in  the  examination  of  teachers  have 
generally  prevailed,  and  the  profession  has  been  advanced 
through  the  wider  validity  of  certificates."  ®  In  thirty-eight 
states,  the  central  educational  authorities  also  had  the  power  of 
suspending  or  revoking  some  or  all  grades  of  certificates.  The 
power  to  prepare  the  examination  questions  and  to  grade  the 
papers  has  also  been  largely  centralized  in  the  hands  of  state 
authorities.  The  actual  conduct  of  the  examinations  is  still 
frequently  entrusted  to  county  superintendents  or  other  local 
officers,  but,  in  191 1,  there  were  only  seven  states  in  which 
the  county  officers  were  free  from  any  interference  by  state 
educational  officers  in  the  examination  of  teachers.^"  In  order 
that  the  services  of  more  competent  teachers  may  be  secured,  a 
number  of  states  have  also  enacted  minimum  salary  laws  and 
pension  systems  for  teachers.  Furthermore,  a  few  states,  such 
as  Minnesota,  have  established  official  employment  agencies  for 

'  Harlan  Updegraff,  "Teachers'  Certificates  Issued  under  General 
State  Laws  and  Regulations,"  Bulletin  of  the  U.  S.  Bureau  of  Educa- 
tion, 191 1,  No.  18,  p.  141. 

"Ibid.,  p.   143. 

326 


THE  ADMINISTRATION  OF  EDUCATION 

placing  teachers,  such  agencies  being  organized  as  bureaus  in 
the  state  departments  of  education  of  the  states  which  have 
estabHshed  them. 

In  order  that  an  efficient  system  of  pubHc  schools  may  be 
maintained,  it  is  desirable  not  only  that  provision  be  made  for 
establishing  schools  and  employing  teachers,  but  also  for  hold- 
ing teachers'  institutes  and  establishing  training  schools  where 
teachers  or  would-be  teachers  may  become  proficient  in  the 
performance  of  their  professional  duties.  Teachers'  institutes 
are  frequently  held  under  the  auspices  of  the  counties,  but  in 
many  states  they  are  more  or  less  under  the  control  of  state 
authorities.  Such  state  control  is  brought  about  by  state  ap- 
propriation for  the  expenses  of  the  institutes,  and  by  the  pre- 
scription of  the  program  of  study  and  the  appointment  of  the 
conductors  and  instructors  by  state  educational  authorities. 
With  the  growth  of  normal  schools  and  summer  schools,  how- 
ever, teachers'  institutes  have  become  less  important. 

In  practically  all  the  states,  one  or  more  state  normal  schools 
are  maintained,  and  the  graduates  of  these  institutions  are 
usually  allowed  to  teach  in  the  public  schools  without  further 
examination.  In  some  states  having  more  than  one  normal 
school,  such  as  Illinois,  each  school  is  under  the  management 
and  control  of  a  separate  board  of  trustees.  It  may  be  ques- 
tioned, however,  whether  the  separate  board  system  is  the  best 
possible  arrangement.  There  seems  to  be  no  good  reason  for 
the  existence  of  separate  boards  when  one  board  would  serve 
the  purpose  with  increased  efficiency  and  a  less  expenditure  of 
effort.  Other  things  being  equal,  a  single  board  of  control 
charged  with  the  responsibility  of  governing  all  these  schools 
would  do  so  in  an  abler  manner,  and  more  economically  and 
efficiently  than  separate  boards.  A  single  board  of  control 
would  not  destroy  the  individuality  of  the  schools,  nor  extin- 
guish any  healthy  rivalry  which  now  exists  among  them ;  for 
such  individuality  and  rivalry  are  largely  created  by  the  presi- 
dents and  faculties  of  the  different  schools,  who  would  still,  for 


AMERICAN  STATE  ADMINISTRATION 

the  most  part  at  least,  remain  separate.  A  single  board  would, 
indeed,  be  able  to  develop  more  effectively  some  specialization 
in  the  work  of  the  different  schools,  and  it  would  tend  to  unify 
and  systematize  those  parts  of  the  management  and  administra- 
tion of  the  schools,  such  as  the  purchase  of  supplies,  where 
uniform  methods  or  single  control  are  effective.  A  single  board 
would  also  make  possible  the  adoption  of  standard  credit  units, 
which  would  facilitate  transfers  of  students  from  one  school 
to  another. 

Single  boards  of  control  over  all  the  normal  schools  in  the 
state  have  been  established  in  a  number  of  states,  including 
Massachusetts,  New  Jersey,  Maryland,  Michigan,  Minnesota, 
Kansas,  Colorado,  Cahfornia  and  others.  In  most  cases  these 
boards  also  have  some  jurisdiction  over  other  educational  insti- 
tutions and  the  state  system  of  elementary  and  secondary 
schools  as  well. 

Not  content  with  the  establishment  of  elementary  and  sec- 
ondary schools  and  of  schools  for  training  teachers  to  teach  in 
them,  many  states  have  established  higher  institutions  of  learn- 
ing, such  as  state  universities  and  agricultural  and  mechanical 
colleges.  These  institutions,  found  mostly  in  the  Central  and 
Western  States,  have,  through  the  munificent  support  given 
to  them  by  their  respective  states,  begun  to  rank  side  by  sicfe 
with  the  older  privately  endowed  institutions  of  the  East.  In 
the  large  majority  of  cases  the  managing  boards  of  trustees  of 
state  universities  are  appointed  by  the  governor  with  the  con- 
sent of  the  senate,  but  in  a  few,  including  Illinois  and  Michigan, 
they  are  elected  by  popular  vote.  In  most  cases  there  are  a 
few  ex  officio  members.  In  some  states,  the  boards  of  trustees 
of  the  state  universities  have  also  other  state  educational  insti- 
tutions under  their  management  and  control.  State  universi- 
ties have  been  and  are  a  potent  influence  in  building  up  the 
standard  of  education  throughout  the  state.  Specifically,  they 
have  promoted  higher  standards  in  secondary  schools  through 
their  high  school  visitors  or  inspectors,  and  through  placing 

328 


THE  ADMINISTRATION  OF  EDUCATION 

on  their  accredited  lists  only  those  schools  which  comply  with 
certain  minimum  educational  requirements. 

*Tn  establishing  institutions  for  higher  education  many  states 
have  followed  the  policy  of  providing  a  number  of  institutions, 
distributed  in  different  parts  of  the  state,  and  each  independent 
in  its  organization  and  management.  Thus,  apart  from  state 
normal  schools,  nine  states  maintain  three  or  more  state  sup- 
ported and  state  controlled  educational  institutions,  and  twelve 
states  have  two  such  institutions, — a  state  university  and  an 
agricultural  and  mechanical  college.  In  seven  states  appropria- 
tions are  made  to  privately  endowed  institutions.  On  the  other 
hand,  in  seventeen  states,  the  state  university  comprises  all  the 
higher  educational  work,  except  that  done  in  the  normal 
schools;  and  in  nine  states  there  is  a  state  agricultural  and 
mechanical  college  but  no  state  university. 

"It  is  the  general  agreement  of  wise  and  progressive  leaders 
of  education  in  the  states  at  the  present  time  that  there  is  a 
distinct  advantage  in  combining  in  one  institution  the  colleges 
of  liberal  arts  and  sciences  and  all  the  professional  schools, 
including  colleges  of  engineering  and  agriculture,  thus  forming 
a  single  university  for  a  given  state.  The  distribution  and  sub- 
division of  the  work  of  higher  education  has  led  in  most  cases 
to  waste,  unnecessary  duplication,  undesirable  competition  for 
students  and  appropriations,  insufficient  financial  support,  con- 
fusion as  to  the  standards  which  each  institution  should  main- 
tain, the  preponderance  of  local  opinion,  and  consequent  inade- 
quacy of  educational  requirements. 

"The  waste  due  to  duplication  of  faculty,  equipment  and 
buildings,  is,  however,  sometimes  overestimated.  There  is  no 
loss  of  economy  or  of  efficiency  in  carrying  on  in  different 
places  the  work  of  the  first  two  years  of  a  liberal  arts  course 
or  of  courses  preliminary  to  technological  work,  provided  that 
the  faculty  and  equipment  are  fully  utilized.  It  is  when  spe- 
cialized and  technological  work  is  begun,  when  the  services  of 
high  salaried  men  and  enormously  expensive  equipment  are 

329 


AMERICAN  STATE  ADMINISTRATION 

required  that  the  waste  and  inefficiency  of  plant  inevitably 
appears. 

"The  need  for  readjustment  is  very  real ;  and  recent  changes 
in  a  number  of  states  show  the  growing  opinion  that  waste, 
overlapping  and  unwholesome  competition  should  cease.  In 
states  where  two  or  more  institutions  have  been  firmly  estab- 
lished, the  possibility  of  physical  consolidation  is  often  too  re- 
mote for  practical  consideration.  But  in  some  states,  as  in 
Michigan  and  Indiana,  the  existing  institutions  have  volun- 
tarily worked  out  a  basis  of  cooperation  and  division  of  labor; 
in  others  efforts  at  organized  cooperation  are  under  way ;  while 
in  several  states  administrative  consolidation  of  several  institu- 
tions under  a  central  board  of  control  has  been  established."  " 

Such  administrative  consolidation  has  been  effected,  for  ex- 
ample, in  Kansas  and  North  Dakota.  The  Kansas  act  abolishes 
the  former  boards  of  regents  of  the  separate  state  institutions 
and  creates  a  state  board  of  adminstration,  appointed  by  the 
governor  and  senate,  to  which  is  entrusted  the  general  control 
and  management  of  the  state  university,  the  agricultural  col- 
lege, and  the  state  normal  schools. ^^  In  191 5,  North  Dakota 
created  a  state  board  of  regents,  similarly  appointed,  which 
succeeds  to  all  the  powers  and  duties  formerly  exercised  by  the 
separate  boards  of  trustees  of  the  various  state  educational 
institutions.  These  and  other  similar  central  boards  have  been 
created  in  order,  among  other  purposes,  to  stop  lobbying  by 
separate  institutions  for  legislative  appropriations,  to  promote 
economy  and  efficiency  in  the  use  of  state  money  for  higher 
education,  and  to  unify  and  coordinate  the  educational  activi- 
ties of  the  state. 

Another  phase  of  educational  activity  in  which  the  states 
engage  is  that  of  providing  library  facilities.  Many  states  have 
established  state  libraries  and  have  also  undertaken  to  promote 

"J.  A.  Fairlie,  in  Report  of  the  Efficiency  and  Economy  Committee 
of  Illinois,  p.  441. 
"Kansas  Session  Laws,  1913,  Ch.  287. 


THE  ADMINISTRATION  OF  EDUCATION 

the  spread  of  local  libraries  through  the  creation  of  state  library 
extension  commissions.  Relatively  little  attention,  however, 
has,  in  general,  been  paid  to  the  development  and  organization 
of  the  state's  library  services,  and  in  most  states  they  are  not 
well  correlated.  A  few  states,  however,  have  adopted  a  more 
coordinated  plan.  The  New  York  State  Library  has  been 
the  largest  and  most  important  state  library  in  the  United 
States ;  and  the  system  of  administration  also  illustrates  the 
greatest  degree  of  centralization.  It  is  organized  as  a  division 
of  the  Department  of  Education,  under  the  general  control  of 
the  board  of  regents.  This  board  has  charge  of  all  books, 
pamphlets,  records,  archives,  and  other  property  appropriate  to 
a  general  library.  It  appoints  a  library  director,  who  has 
direct  charge  of  the  state  library  and  superintends  the  state's 
library  activities,  including  the  legislative  reference  bureau, 
library  extension  work,  and  a  library  school. 

In  Indiana,  the  state  board  of  education  is  the  state  library 
board,  and  selects  the  state  librarian,  who  serves  until  his  suc- 
cessor is  elected.  It  thus  appears  that  New  York  and  Indiana 
have  both  organized  their  state  libraries  as  a  branch  of  the 
educational  system.  Massachusetts,  Ohio,  Texas,  and  Cali- 
fornia have  provided  appointive  library  boards.  In  these  states 
the  state  library  includes  all  or  the  most  important  library 
services ;  but  in  New  York  and  California  the  law  libraries, 
and  in  Indiana  the  legislative  reference  work,  are  under  sepa- 
rate management.  Most  of  the  other  states  place  the  state 
library  under  the  control  of  ex  officio  boards;  but  in  many 
cases  there  are  separate  authorities  for  different  phases  of 
library  work,  such  as  law  libraries,  library  extension,  legisla- 
tive reference  bureaus,  and  archives.       * 

An  important  matter  is  the  question  of  the  selection  of  a 
competent  state  librarian.  It  seems  clear  that  the  state  librarian 
should  not  be  an  ex  officio  elective  officer,  who  is  chosen  pri- 
marily for  the  performance  of  other  duties,  and  who  is  only 
incidentally  state  librarian.     Such  an  elective  official  is  not 

331 


AMERICAN  STATE  ADMINISTRATION 

likely  to  be  a  person  versed  in  library  matters,  and  abreast  of 
the  most  modern  methods  of  library  administration.  The  state 
librarian  should  be  appointed,  and  should  not  have  a  definite 
term  of  office,  unless  it  is  understood  that  he  will  ordinarily  be 
reappointed  upon  the  expiration  of  such  term.  He  should  re- 
ceive a  salary  sufficiently  large  to  make  it  possible  to  secure 
the  services  of  a  well  trained  and  experienced  librarian.  He 
should  have  power  to  appoint  other  librarians  and  employees 
engaged  in  library  work.  He  should  be  empowered  to  pur- 
chase books,  superintend  the  library  extension  work,  and  oper- 
ation of  traveling  libraries,  and  to  give  advice  and  information 
with  regard  to  the  proper  administration  of  the  libraries  located 
in  various  state  charitable  and  correctional  institutions.  A 
single  executive  head  over  the  library  facilities  of  the  state 
means  economy  of  administration,  unity  of  policy,  and  more 
efficient  and  comprehensive  services.  Such  an  arrangment 
tends  to  prevent  danger  of  confusion  resulting  from  overlaj?- 
ping  of  work,  and  conduces  to  the  coordinate  development  of 
the  various  branches  of  library  work. 

Before  concluding  this  chapter,  a  word  should  be  said  "in 
regard  to  the  influence  of  the  National  Government  in  educa- 
tion. Except  in  the  case  of  military  and  naval  training,  the 
National  Government  does  not  undertake  the  direct  manage- 
ment of  educational  activities  within  the  states,  but  has  never- 
theless promoted  the  cause  of  education  in  a  substantial  way 
through  land  grants  and  appropriations,  the  value  of  which  has 
amounted  to  hundreds  of  millions  of  dollars.  Especially  note- 
worthy is  the  Morrill  Land  Grant  Act  of  1862,  which  granted 
to  each  state  30,000  acres  for  each  senator  and  representative 
in  Congress  for  the  endowment  of  agricultural  and  mechanical 
colleges.  There  are  now  about  seventy  of  these  land  grant 
colleges.  Furthermore,  in  1867,  there  was  established  a  bureau 
of  education  at  Washington,  now  under  the  Department  of  the 
Interior,  with  a  commissioner  of  education  at  its  head.  The 
bureau  is  authorized  to  collect  and  diffuse  information  on  edu- 

332 


THE  ADMINISTRATION  OF  EDUCATION 

cational  matters,  and  also  to  supervise  the  expenditures  under 
the  Morrill  and  supplementary  acts.  The  United  States  Com- 
missioners of  Education  have  counted  among  their  number 
some  of  the  ablest  educational  leaders  in  the  country,  and  their 
annual  reports  constitute  the  most  authoritative  and  compre- 
hensive sources  of  information  to  be  found  anywhere  re- 
garding educational  conditions  and  progress  in  this  country 
and  abroad. 

REFERENCES  AND  COLLATERAL  READING 

Annual  Reports  of  the  Carnegie  Foundation  for  the  Advancement 
of  Teaching. 

Annual  Reports  of  the  United  States  Commissioner  of  Education. 

Bulletins  and  Monographs  of  the  United  States  Bureau  of  Edu- 
cation. 

CuBBERLEY,  E.  P.    PubUc  ScJiool  Administration. 

.     State  and  County  Educational  Reorganisation. 

Draper,  A.  S.  "Educational  Organization  and  Administration," 
in   Butler,   N.  M.   ed.,  Education  in   the   United  States,  pp. 

Dutton,  S.  T.  and  Snedden,  D.  The  Administration  of  Public 
Education  in  the  United  States  (Revised  Edition). 

Fairlie,  J.  A.  "The  Centralization  of  Administration  in  New 
York  State,"  Columbia  University  Studies,  ix.  No.  3,  Ch.  11. 

.     Local  Government  in  Counties,  Towns  and  Villages,  Ch, 

XII. 

Harrin,  F.  H.  "County  Administration  of  School  Affairs  in  Its 
Relation  to  the  State  Department,"  Annals  of  the  American 
Academy  of  Political  and  Social  Science,  xlvii,  p.  153. 

Hollister,  H.  a.  The  Administration  of  Education  in  a  De- 
mocracy. 

Lefevre,  a.  The  Organisation  and  Adniinistratioji  of  a  State's 
Institutions  of  Higher  Education. 

Mathews,  J.  M.  "Educational  Administration,"  in  Report  of  the 
Efficiency  and  Economy  Committee  of  Illinois,  pp.  403  ff. 

Monroe,  P.  ed.  Cyclopedia  of  Education:  Articles  on  State 
Boards  of  Education,  State  Educational  Organization,  Super- 
intendent of  Schools,  et  cetera. 

333 


AMERICAN  STATE  ADMINISTRATION 

Proceedings  of  the  National  Education  Association. 

Reed,  T.  H.     Government  for  the  People,  Ch.  XIII. 

Reinsch,   p.   S.     Readings  on  American  State   Government,  pp. 

328-337- 

"Report  of  the  Illinois  Educational  Commission,"  in  the  Twenty- 
eighth  Biennial  Report  of  the  Superintendent  of  Public  In- 
struction of  Illinois,  IQ08-10,  pp.  256-459. 

Reports  of  State  Superintendents  and  Commissioners  of  Education. 

Sharpless,  I.  "Relation  of  the  State  to  Education,"  "Annals  of 
the  American  Academy  of  Political  and  Social  Science,  iii,  p. 
669. 

Swift,  F.  H.  History  of  Public  Permanent  Common  School 
Funds  iti  the  United  States,  i/'pj-ipoj. 

Transactions  and  Proceedings  of  the  National  Association  of  State 
Universities. 

Webster,  W.  C.  "Recent  Centralizing  Tendencies  in  State  Edu- 
cational Administration,"  in  Columbia  University  Studies,  viii, 
No.  2;  Educational  Review,  xiii,  pp.  23-29,  134-145. 

Young,  J.  T.  The  New  American  Government  and  Its  Work, 
Ch.  XX. 


CHAPTER   XIII 
ADMINISTRATION  OF  CHARITIES  AND  CORRECTIONS 

A  consideration  of  the  administration  of  charities  and  cor- 
rection naturally  follows  that  of  educational  administration, 
with  which  it  has  points  both  of  similarity  and  of  contrast. 
Both  systems  of  administration  involve  the  participation  of 
local  units  of  government  and  the  maintenance  of  state  institu- 
tions. The  distinction  between  educational  institutions  and 
those  which  are  classed  as  charitable  or  correctional  is  not 
always  sharply  defined.  Some  institutions,  such  as  those  for 
the  deaf,  dumb  and  blind,  may  be  classed  as  either  charitable  or 
educational  or  both.  Educational  processes  of  different  kinds 
are  carried  on  at  many  charitable  and  correctional  institutions 
with  the  object  of  remaking  as  large  a  portion  of  the  inmates 
as  possible  into  normal  members  of  society.  The  administra- 
tion of  charities  and  correction  differs  from  that  of  education 
in  that  the  permanent  success  of  the  former  is  measured  by 
the  extent  to  which  it  becomes  constantly  less  necessary 
through  the  gradual  elimination  of  the  dependent,  defective, 
and  delinquent  classes ;  while  the  natural  and  proper  tendency 
of  educational  administration  is  in  the  direction  of  constant 
growth,  of  ever-widening  scope  and  purpose. 

Charitable  and  correctional  administration  differs  from  that 
of  education  in  that,  even  at  its  most  extended  development,  it 
can  and  should  deal  with  only  a  limited  class  of  society,  while 
education  is  or  should  be  practically  universal.  This  difference 
has  had  an  important  influence  upon  these  fields  of  administra- 
tion. The  universality  of  education  tends  to  produce  an  almost 
universal  interest  in  the  methods  and  instrumentalities  of  edu- 

335 


AMERICAN  STATE  ADMINISTRATION 

cation,  whereas  a  large  portion  of  the  public  knows  and  cares 
little  about  charitable  and  correctional  administration  because 
it  touches  only  a  class  instead  of  the  entire  citizenship.  The 
consequence  has  been  that  greater  difficulties  and  abuses  have 
occurred  in  charitable  and  correctional  administration,  because 
it  is  less  subject  to  the  wholesome  and  salutary  influence  of 
public  interest  and  public  opinion. 

At  the  beginning  of  the  history  of  the  older  states,  the  public 
administration  of  charities  and  correction,  in  so  far  as  it  existed 
at  all,  was  carried  on  entirely  by  the  local  units  of  govern- 
ment, the  town  and  the  county.  In  the  case  of  correctional 
administration,  town  and  county  jails  and  lock-ups  were  pro- 
vided. The  administration  of  charities,  however,  consisted  at 
first  of  out-door  poor  relief  distributed  by  the  town  overseers. 
As  communities  grew  and  became  more  settled,  pauperism  in- 
creased and  the  earlier  sporadic  and  temporary  methods  of 
out-door  relief  became  insufficient.  Before  the  establishment 
of  public  institutions,  however,  a  method  frequently  adopted 
by  the  towns  was  that  of  "farming  out"  the  poor,  that  is,  con- 
tracting with  some  citizen  of  the  neighborhood  to  care  for  them. 
Sometimes  the  privilege  was  auctioned  off  to  the  lowest  bidder. 
As  the  purchasers  of  this  privilege  were  usually  actuated  by 
mercenary  motives  rather  than  by  any  particular  interest  in  th^ 
welfare  of  the  inmates,  many  abuses  naturally  arose  which 
led  in  time  to  the  establishment  of  public  almshouses  in  the 
localities.  These  institutions  contained  a  mixed  population  of 
both  sexes  and  all  ages  and  conditions.  There  was  practically 
no  attempt  to  classify  the  inmates,  much  less  to  extend  special 
treatment  for  the  cure  or  improvement  of  particular  classes  of 
paupers.  During  the  first  part  of  the  nineteenth  century,  the 
administration  of  public  poor  relief  in  some  of  the  older  states^ 
became  centralized  in  the  counties  or  a  greater  degree  of  super- 
vision of  the  counties  over  the  poor-relief  activities  of  the 
towns  was  effected.  The  improvement  of  conditions  through 
this  development,  however,  was  not  very  marked.    There  was 

336 


CHARITIES  AND  CORRECTIONS 

still  little  or  no  attempt  at  classification  or  differentiation  of 
the  inmates,  and,  in  both  charitable  and  correctional  adminis- 
tration, the  whole  purpose  seemed  to  be  the  segregation  of  the 
dependent  or  delinquent  classes,  with  no  thought  of  the  cure 
or  eradication  of  the  mental,  moral  or  physical  diseases  from 
which  they  suffered. 

The  abuses  which  manifested  themselves  under  the  system  of 
local  administration,  whether  in  the  township  or  county,  con- 
stituted one  of  the  principal  causes  which  led  in  time  to  the 
extension  of  state  supervision  over  local  activities.  This  devel- 
opment was  also  assisted  through  the  growth  in  some  states 
of  a  class  of  unsettled  or  state  paupers,  that  is,  those  who  had 
not  established  a  residence  in  any  particular  locality  in  the 
state,  and  therefore  had  no  legal  claim  upon  the  local  authori- 
ties for  relief.  Provision  was  made  by  the  state  for  the  relief 
of  such  persons,  but  such  aid  was  not  administered  directly 
by  state  authorities.  The  amount  of  money  deemed  necessary 
for  the  purpose  was  furnished  by  the  state  to  the  local  authori- 
ties, to  be  used  by  them  in  relieving  state  paupers.  In  order 
to  safeguard  the  interests  of  the  state,  the  expenditure  of  state 
funds  by  local  authorities  required  some  degree  of  state  super- 
vision over  them.  The  extent  of  this  supervision  was  at  first 
practically  negligible,  but  as  it  became  more  evident  that  the 
local  authorities,  unless  effectively  supervised,  could  not  be 
depended  upon  to  protect  the  state's  interest,  and  as  the  finan- 
cial interest  of  the  state  became  greater  through  the  increase 
in  the  number  of  state  paupers  or  through  the  extension  of 
state  aid  to  other  classes  of  dependents,  the  amount  of  state 
supervision  tended  steadily  to  increase. 

With  the  growth  of  the  general  population  and  the  increasing 
complexity  of  modern  social  conditions,  there  has  been  a  steady 
growth  in  the  size  of  the  dependent  and  delinquent  classes  and 
a  growing  inadequacy  of  local  or  private  agencies  to  deal  with 
the  problems  to  which  the  care  of  such  classes  gives  rise.  Local 
public  agencies,  in  particular,  have  shown  themselves,  as  a 

337 


AMERICAN  STATE  ADMINISTRATION 

rule,  unprogressive  and  ignorant  of  the  most  advanced  meth- 
ods of  deahng  with  the  inmates  entrusted  to  their  care.  The 
methods  adopted  in  local  charitable  institutions  have  been 
evolved  with  the  object  in  view  of  merely  affording  immediate 
relief,  or,  in  the  case  of  the  insane  and  criminal  classes,  of 
merely  segregating  them  from  the  balance  of  society.  It  be- 
came evident  that,  if  the  newer  ideals  of  cure,  reformation 
and  prevention  through  the  adoption  of  advanced  methods 
scientifically  adapted  to  the  accomplishment  of  these  objects, 
were  to  hold  sway  in  charitable  and  correctional  administra- 
tion, state  interference  was  necessary,  either  in  the  form  of 
supervision  of  local  and  private  agencies  or  through  direct 
management  and  control.  Furthermore,  local  and  private 
agencies,  except  in  the  larger  centers  of  population,  were  not 
financially  able  to  maintain  adequate  and  efficient  institutions, 
even  if  competent  in  other  ways  to  do  so,  and  consequently 
they  requested  and  received  considerable  grants  of  money 
from  the  state. 

Although  private  charity,  particularly  in  the  form  of  out- 
door relief,  except  in  the  case  of  great  emergencies  and  catas- 
trophes, has  the  advantage  over  public  charity  that  it  is  more 
likely  to  retain  the  personal  touch  from  which  flows  the  true 
charitable  spirit;  nevertheless  it  is  frequently  so  unintelligent 
that  its  ministrations  tend  to  increase  rather  than  to  decrease 
the  total  amount  of  dependency.  Such  a  tendency  is  best  com- 
bated by  a  more  general  diffusion  of  information  and  educa- 
tion regarding  the  best  methods  of  charitable  relief,  and  the 
dissemination  of  such  information  is  an  important  function  of 
the  state.  Notwithstanding  the  great  expansion  of  public 
agencies  of  charitable  relief,  much  work  of  this  sort  is  still 
performed  by  private  institutions.  Most  of  these  are,  in  one 
sense,  not  purely  private  institutions,  because  they  are  char- 
tered or  incorporated  by  the  state  and  receive  state  aid  or 
exemption  from  taxation.  It  has  sometimes  been  argued  that 
when  a  charitable  institution  under  private  management  does 

338 


CHARITIES  AND  CORRECTIONS 

not  receive  financial  aid  from  the  state,  it  should  not  be  subject 
to  state  supervision.  This  individualistic  doctrine  has  occa- 
sionally been  upheld  by  the  courts/  but  is  gradually  giving  way 
to  the  necessity  for  social  control,  in  order  to  safeguard  the 
interests  of  the  inmates  and  of  private  philanthropists  who 
may  be  induced  to  contribute  to  the  support  of  such  institu- 
tions. In  the  case  of  those  private  charities  which  regularly 
receive  appropriations  of  state  money,  it  is  manifestly  the  duty 
of  the  state  to  see  to  it  that  such  funds  are  wisely  and  econom- 
ically expended.  Unfortunately,  such  funds  are  frequently 
appropriated  in  lump  sums  to  the  various  private  institutions, 
in  accordance  with  the  extent  of  the  political  influence  which 
the  managers  are  able  to  bring  to  bear  upon  the  legislature, 
rather  than  in  proportion  to  the  amount  of  service  which  it 
has  been  definitely  determined  by  expert  inspection  can  be  fur- 
nished by  the  respective  institutions.  If  the  somewhat  doubtful 
policy  of  granting  state  funds  to  private  charities  is  to  be  con- 
tinued, the  latter  method  should  be  the  only  basis  on  which 
such  funds  are  granted,  but  before  such  a  basis  can  be  adopted, 
it  will  be  necessary,  in  order  that  the  expert  inspection  be  had, 
that  state  boards  be  vested  with  greater  powers  of  supervision 
over  private  charities.  Indeed,  there  would  be  some  advan- 
tages in  having  funds  appropriated  in  a  lump  sum  to  the  state 
board,  to  be  distributed  by  it  among  private  charities.  Some 
central  supervision  over  private  charities  has  already  been 
brought  about  in  a  number  of  states.  Thus,  in  Illinois,  before 
private  associations  for  the  care  of  dependent  and  neglected 
children  can  be  incorporated,  they  are  subject  to  the  examina- 
tion and  approval  of  the  state  board  of  administration.  This 
board  may  also  visit  and  inspect,  upon  complaint  of  two  repu- 
table citizens,  any  charitable  association  or  institution  appeal- 
ing to  the  public  for  aid  or  which  is  supported  by  trust  funds. 
In  Massachusetts,  private  associations  applying  for  incorpora- 


^  People  ex  rel.  State  Board  of  Charities  vs.  New  York  Society  for 
Prevention  of  Cruelty  to  Children,  162  N.  Y.,  429. 

339 


AMERICAN  STATE  ADMINISTRATION 

tion  as  organizations  for  charitable  purposes  must  be  investi- 
gated by  the  state  board  of  charities  before  a  charter  can  be 
issued,  and,  after  incorporation,  they  are  required  to  report 
annually  to  the  state  board.  Oklahoma  has  gone  still  further 
and  provided  that  all  private  institutions  for  the  support  of 
the  poor,  whether  or  not  in  receipt  of  aid  from  the  state  or 
from  local  units  of  government,  shall  be  subject  to  inspection 
by  the  state  commissioner  of  charities  and  correction  and  must 
furnish  reports  and  information  to  that  officer  whenever  de- 
manded. Such  reports  and  information  are  essential  if  the 
state  department  is  to  be  fully  informed  regarding  the  whole 
problem  of  charity  and  the  extent  of  dependency  in  the  state.^ 

The  same  considerations  which  require  central  supervision 
of  private  charities  apply  equally  to  local  public  charitable  and 
correctional  institutions.  These  institutions  are  usually  found 
under  the  direct  control  of  township  trustees  and  overseers  of 
the  poor,  county  boards  of  commissioners  and  sheriffs.  The 
conditions  which  developed  in  these  institutions  as  the  result  of 
decentralized  administration,  due  to  ignorance  and  lack  of 
proper  care  or  interest  on  the  part  of  the  local  authorities,  were 
frequently  revolting  to  every  sense  of  decency.  The  county 
jail  in  particular,  on  account  of  its  poor  construction  and  its 
frequent  lack  of  proper  means  of  separating  the  sexes  and  the 
mature  from  immature  prisoners,  has  been  roundly  denounced 
as  a  prolific  breeding-place  of  vice  and  crime.  The  class  of 
misdemeanants  who  are  sent  to  the  county  jails  are  much  more 
numerous  than  the  felons  in  the  state  prisons,  and,  being  com- 
posed to  a  considerable  extent  of  young  first  offenders,  they 
should  be  given  every  opportunity  and  inducement  to  reform. 
To  entrust  their  detention  to  ignorant  local  authorities,  how- 
ever, results  in  sending  many  of  them  upon  a  career  of  crime, 
thus  swelling  the  number  of  felons  with  which  the  state  will 

*  On  the  subject  of  state  supervision  of  private  charities,  see  Pro- 
ceedings of  the  National  Conference  of  Charities  and  Correction,  igo2, 
p.  130;  191 1,  p.  35. 


CHARITIES  AND  CORRECTIONS 

ultimately  have  to  deal.  The  inefficiency,  not  to  say  vicious 
character,  of  the  local  institutions  thus  exerts  an  injurious  in- 
fluence throughout  the  entire  system  of  the  state  for  dealing 
with  criminals,  and  cannot  be  safely  ignored  by  the  state  as  if 
it  were  a  matter  of  mere  local  concern. 

Central  supervision  over  local  charitable  and  correctional 
institutions  is  desirable  in  order  to  secure  better  care  and  treat- 
ment of  the  inmates,  better  construction  and  arrangement  of 
institutional  buildings,  and  the  more  efficient  collection  and 
prompt  transmittal  of  statistical  reports.  Experience  has 
shown  that  these  objects  can  seldom  be  attained  under  a  decen- 
tralized system  of  charitable  and  correctional  administration, 
and  some  degree  of  central  supervision  and  control  has  there- 
fore been  introduced  in  most  states.  This  first  took  the  form 
of  mere  supervision,  but  where  this  was  not  found  sufficient, 
some  degree  of  control  was  added.  Thus,  in  New  York, 
Massachusetts  and  many  other  states  the  State  Board  of  Char- 
ity and  the  State  Prison  Commission,  or  similar  boards,  are 
given  powers  of  visitation  and  inspection  of  local  charitable  and 
correctional  institutions  respectively.  The  insufficiency  of  mere 
visitorial  and  recommendatory  powers  has  led  in  some  states 
to  the  granting  of  more  mandatory  powers  to  state  authorities. 
Thus,  in  Alabama,  all  plans  and  specifications  for  local  jails 
must  be  submitted  for  approval  to  the  State  Prison  Inspector, 
who  is  empowered  to  enforce  proper  rules  regarding  sanitation 
and  ventilation.  A  Minnesota  law  of  1893  gave  to  the  State 
Board  .of  Corrections  and  Charities  of  that  state  power,  with 
the  consent  of  the  district  judge,  to  condemn  such  county  jails 
as  were  found  unfit  for  use.  Under  an  Indiana  law  of  1909, 
"when  the  Board  of  State  Charities  finds  on  inspection  that  a 
jail  is  unfit  for  the  confinement  of  prisoners,  it  is  required  to 
report  the  facts  to  the  judge  of  the  circuit  court.  On  the 
judge  is  conferred  the  power  then  to  require  that  the  jail  be 
put  in  proper  condition.  If  he  does  not  act  within  a  reason- 
able time,  the  governor  is  given  authority  to  condemn  the 

341 


AMERICAN  STATE  ADMINISTRATION 

jail  and  order  the  prisoners  to  be  removed  to  another  county 
until  proper  conditions  are  secured."  ^  Through  these  more 
drastic  provisions,  the  management  of  local  institutions  may 
to  some  extent  be  virtually  transferred  to  central  authority. 
This  does  not  extend,  however,  to  the  appointment  or  removal 
of  the  local  officers,  except  that  county  boards  of  charity  or 
visitors  are  sometimes  appointed  by  the  governor  or  the  state 
board.  The  condition  of  the  local  institutions  has  undoubt- 
edly been  greatly  improved  by  the  development  of  central 
supervision.  In  the  case  of  some  local  institutions,  however, 
such  as  county  insane  asylums,  even  state  supervision  does 
not  secure  the  best  results,  and  in  some  states,  therefore,  all 
insane  patients  are  transferred  to  the  direct  care  and  man- 
agement of  the  state  in  state  institutions.* 

Centralization  in  state  charitable  and  correctional  adminis- 
tration has  taken  the  form,  not  merely  of  the  supervision  of 
the  activities  of  local  authorities  and  private  agencies,  but 
also  of  the  establishment  and  direct  management  by  state  au- 
thorities of  institutions  for  the  care  of  particular  classes  of 
dependents,  defectives,  and  delinquents.  State  prisons  for 
the  incarceration  of  felons  were  established  in  some  of  the 
older  states  about  the  beginning  of  the  nineteenth  century. 
The  establishment  of  state  charitable  institutions  followed  a 
half  century  after  the  state  prisons.  The  earlier  develop- 
ment of  direct  state  correctional  administration  was  due  in 
part  to  the  feeling  that  hardened  felons  were  a  greater  men- 
ace to  the  community  than  were  the  objects  of  public  charity, 
and  their  effective  segregation  from  society  required  greater 
security  than  could  be  found  in  the  poorly  constructed  county 
jails.  It  was  also  due  in  part  to  the  fact  that  the  evils  con- 
nected with  the  local  administration  of  charities  were  to  some 

*  The  Development  of  Public  Charities  and  Correction  in  Indiana, 
1792-1910,  p.  78. 

*  On  state  supervision  of  local  jails  and  almshouses,  see  Proceedings 
of  National  Conference  of  Charities  and  Correction,  1910,  pp.  303-307. 


CHARITIES  AND  CORRECTIONS 

extent  alleviated  through  private  benevolent  enterprise  in  es- 
tablishing institutions  for  the  care  of  special  classes  of 
dependents  or  defectives.  In  this  way  some  degree  of  differ- 
entiation in  the  care  and  treatment  of  these  classes  w^as  ef- 
fected, and  consequently  the  need  for  direct  state  interference 
in  charitable  administration  was  not  so  early  or  so  keenly 
felt.  It  is  noteworthy  also  that  the  first  state  charitable  insti- 
tutions to  be  established,  namely,  the  state  insane  asylums, 
were  not  considered  as  purely  charitable  institutions,  but  were 
partly  intended  to  protect  society  from  the  menace  of  the 
violent  insane. 

The  various  state  charitable  and  correctional  institutions 
have  been  established  from  time  to  time  for  the  care  of  special 
classes  of  inmates  as  the  result  of  a  policy  of  opportunism, 
depending  in  part  upon  the  extent  of  the  dissatisfaction  with 
local  methods,  in  part  upon  the  increase  of  scientific  knowledge 
of  better  methods  of  care  and  treatment  with  regard  both  to 
the  older  classes  of  inmates  and  also  the  newer  classes  not 
formerly  under  public  care,  such  as  the  feebleminded,  epilep- 
tics and  the  victims  of  tuberculosis,  and  in  part  upon  the 
willingness  of  the  legislature  to  provide  the  necessary  funds. 
As  at  first  developed,  these  institutions  were  state  institutions 
in  the  sense  that  they  were  supported  almost,  if  not  entirely, 
by  funds  from  the  state  treasury,  were  each  managed  directly 
by  a  separate  board  of  trustees  appointed  by  the  governor  and 
senate,  and  usually  also  received  inmates  from  any  part  of 
the  state.  So  far  as  the  control  over  the  institution  was  con- 
cerned, however,  the  state  character  of  the  institution  was 
frequently  merely  nominal,  for  local  influences  were  predomi- 
nant in  its  management.  This  condition  was  the  result  of 
several  causes.  In  the  first  place,  the  site  upon  which  the 
institution  was  located,  and  sometimes  also  buildings  and 
money,  were  frequently  donated  by  residents  of  the  locality 
in  question.  It  is  doubtless  true  that  this  circumstance  stimu- 
lated  local  pride  in  the   institution,  and  that,  without  such 

343 


AMERICAN  STATE  ADMINISTRATION 

local  aid,  the  institution  probably  would  not  have  been  estab- 
lished until  the  problem,  in  the  solution  of  which  it  was  de- 
signed to  assist,  had  become  much  more  acute.  Nevertheless, 
the  ultimate  effect  of  the  policy  of  the  state  in  establishing- 
institutions  in  particular  locations  in  consideration  of  dona- 
tions of  land  and  money  by  local  residents  is  often  injurious 
to  the  welfare  of  the  institution.  It  may,  as  a  result,  be 
placed  in  a  disadvantageous  location  which  will  prevent  it  from 
accomplishing  the  best  results.  But  a  still  more  injurious  effect 
of  this  policy  is  the  tendency  which  it  produces  on  the  part  of 
the  local  residents  to  regard  the  institution  as  a  local  asset  for 
which  they  have  paid  a  quid  pro  quo  and  from  which  they 
have  a  right  to  secure  as  large  a  return  as  possible. 

In  the  second  place,  a  circumstance  which  tends  in  the 
same  direction  is  the  practice  of  appointing  one  or  more  mem- 
bers of  the  board  of  trustees  from  the  residents  of  the  mu- 
nicipality or  county  in  which  the  institution  is  located.  In 
favor  of  this  practice  it  may  be  argued  that  local  trustees  are 
more  familiar  with  local  conditions  than  those  residing  at  a 
distance,  and  can  give  more  of  their  time  and  attention  in 
promoting  the  welfare  of  the  institution.  Experience  has 
shown,  however,  that  the  net  result  of  this  practice  is  not 
apt  to  be  favorable  to  the  institution's  best  interests.  Such 
local  trustees  are  apt  to  look  upon  the  institution  as  a  local 
enterprise  for  local  benefit,  particularly  if  they  have  local 
business  interests.  Nepotism  is  more  likely  to  creep  into  the 
institution.  A  much  larger  proportion  of  the  supplies  for  the 
institution  is  apt  to  be  purchased  from  local  merchants  at 
excessive  prices,  with  the  resulting  lack  of  economy  and 
chances  for  favoritism.  Finally,  the  administration  of  the  in- 
stitutions under  separate  boards  tends  to  become  localized 
because  such  boards  are  not  under  the  effective  supervision 
of  any  state  officer  or  body  of  general  powers  and  responsi- 
bilities. The  governor's  powers  are  usually  quite  limited  and 
those  which  he  has  are  not  always  effectively  utilized,  and  no 

344 


CHARITIES  AND  CORRECTIONS 

state  organ  or  agency  is  at  first  specifically  created  to  perform 
this  function  of  supervision.  The  results  have  been  a  lack 
of  uniformity  of  methods  among  the  various  institutions  in 
regard  to  matters  in  which  uniformity  w^ould  be  distinctly 
desirable,  a  lack  of  efficiency  and  economy  in  the  general  man- 
agement of  the  institution,  and  sometimes  such  an  amount  of 
demoralization  among  the  officers  and  employees  as  to  result 
in  gross  abuses,  which  the  board  of  trustees  are  either  igno- 
rant of  or  are  unwilling  or  unable  to  remedy. 

In  case  of  the  failure  or  refusal  of  the  board  of  trustees 
to  remedy  gross  abuses  in  the  institutions,  investigation  and 
action  by  the  grand  jury  may  be  resorted  to,  but  much  harm 
may  be  done  before  the  grand  jury  is  convened,  and,  even  if 
it  happens  to  be  in  session,  its  membership  is  not  likely  to  con- 
tain anyone  having  special  or  expert  knowledge  of  charitable 
or  correctional  work  and  therefore  able  to  discover  any  ex- 
cept obvious  abuses  or  to  suggest  the  proper  remedy.  Objec- 
tions somewhat  similar  to  these  may  also  be  urged  against 
legislative  supervision,  which  antedated  any  form  of  adminis- 
trative supervision  over  the  institutions  and  still  exists. 
Members  of  legislative  visiting  committees  are  seldom  men 
with  wide  knowledge  of  the  most  advanced  methods  of  insti- 
tutional management,  such  control  as  these  committees  are 
able  to  exercise  can  only  be  spasmodic,  and  their  occasional 
visits  are  usually  perfunctory  and  may  even  degenerate  into 
"junkets,"  which  are  harmful  to  the  inmates  as  well  as  a  use- 
less expense  to  the  state.  Party  considerations  are  apt  to 
affect  the  findings  of  such  committees  if  any  findings  are  re- 
ported, but  usually  no  report  of  the  visitation  is  made  for 
the  information  of  the  other  members  of  the  legislature  and 
of  the  general  public.  As  a  means  to  delocalize  the  institu- 
tions under  separate  boards,  legislative  supervision  has  had 
little  success. 

In   addition    to   legislative    supervision,    most    states    have 
established  some  form  of  administrative  supervision  over  the 

345 


AMERICAN  STATE  ADMINISTRATION 

management  of  the  state  institutions  by  the  separate  boards 
of  trustees,  or  have  centralized  the  management  of  the  insti- 
tutions in  the  hands  of  a  single  board  of  control,  or  both.  It 
will  be  noted  that  these  new  boards  differ  from  the  separate 
boards  of  trustees  in  that  the  former  are  either  not  managing 
or  administrative  boards,  or,  if  so,  they  have  control  over 
more  t!.an  one  institution.  Probably  the  first  of  the  new 
boards  in  the  correctional  field  was  that  of  the  Inspectors  of 
State  Prisons,  created  by  the  New  York  Constitution  of 
1846,  which  provided  that  it  should  consist  of  three  members, 
elected  by  popular  vote  and  should  have  charge  and  superin- 
tendence of  the  state  prisons,  and  should  appoint  all  the  offi- 
cers therein.  As  early  as  1851  there  was  established  in  Mas- 
sachusetts a  state  Board  of  Alien  Commissioners,  having 
special  powers  over  certain  classes  of  paupers,  but  the  first 
state  board  of  charity  having  general  powers  of  supervision 
over  state  institutions  was  the  Massachusetts  State  Board  of 
Charities,  created  in  1863.  New  York  and  Ohio  followed 
suit  in  1867  and  since  then  charitable  and  correctional  boards 
of  one  kind  or  another  have  been  established  in  more  than 
three-fourths  of  the  states.  These  boards  may  be  classified 
and  sub-classified  in  various  ways,  but  we  may  note  particu- 
larly the  divisions  into  which  the  boards  fall  in  accordance 
with  two  main  bases  or  principles  of  classification.  In  the 
first  place,  they  may  be  classified  in  accordance  with  the 
character  of  the  work  performed  by  the  institutions  or  on 
the  basis  of  the  authorities  over  which  they  exercise  their 
powers.  In  the  second  place,  they  may  be  classified  in  accord- 
ance with  the  nature  and  extent  of  the  powers  which  they 
exercise  over  such  institutions  or  authorities.  The  first  has 
to  do  primarily  with  kinds  of  institutions;  the  second  pri- 
marily with  kinds  of  powers.^ 

°  Still  another  classification  of  the  state  agencies  might  be  into 
boards  and  single  commissioners.  The  latter  plan  is  found  in  New 
Jersey  and  Oklahoma. 


CHARITIES  AND  CORRECTIONS 

Under  the  first  principle  of  classification,  the  states  may  be 
divided  into  those  in  which  all  the  charitable  and  correctional 
institutions  are  under  the  management  or  supervision  of  a 
single  board,  and   into  those   in   which   the   institutions   are 
divided  into  groups,  each  such  group  being  placed  under  a 
state  board.     The  first  plan  is  found,  as  a  rule,  only  in  the 
case  of  early  boards,  or  in  small  states,  or  in  states  having 
central  boards  of  control.    Thus  the  Massachusetts  Board  of 
Charities   was   originally  authorized  to   supervise   the  whole 
system    of    state    charities    and    correction.     The    Ohio    and 
Pennsylvania  Boards  of  State  Charities,  established  in   1867 
and  1869  respectively,  were  given  functions  of  equally  wide 
scope.    In  Rhode  Island  all  the  state  institutions  were  located 
on  a  single  farm  and  placed  under  one  board.     In  a  number 
of  states,  however,  the  various  institutions  are  divided  into 
more  or  less   homogeneous   groups   and   each  group  placed 
under  a  separate  board.     The  most  conspicuous  line  of  divi- 
sion between  the  institutions,  of  course,  is  that  which  runs 
between    charitable    and    correctional    institutions,    and    this 
separation  early  appeared.    Thus,  in  1879,  the  supervision  of 
the  Massachusetts  Board  of  Charities  over  correctional  insti- 
tutions was  taken  from    it    and    transferred    to    the    newly 
created  State  Board  of  Prison  Commissioners.     As  the  num- 
ber of  institutions  and  inmates  increase,  more  minute  classi- 
fication of  the   state's   dependents   and   delinquents  becomes 
possible,  and  the    group    system    of    institutional    control    or 
supervision    becomes    more    prevalent,    particularly    in    the 
larger  states.    The  group  system  is  now  found  in  New  York 
and  Massachusetts,  in  both  of  which  states  the  institutions 
for  the  care  and  custody  of  paupers,  lunatics,  and  criminals 
are  respectively  under  the  supervision  of  separate  boards.    In 
some  states  the  group  system  is  found  in  only  a  partial  state 
of  development ;  that  is,  it  has  been  applied  to  some  institu- 
tions, while  others  are  still  left  under  separate  boards.     The 
care  and  treatment  of  the  different  classes  of  inmates  are  so 

347 


AMERICAN  STATE  ADMINISTRATION 

dissimilar,  that  the  division  of  labor  and  specialization  intro- 
duced by  the  group  system  enables  the  state  board  to  main- 
tain a  more  effective  supervision  over  the  institutions  assigned 
to  it.  The  methods  of  business  management  of  the  various 
classes  of  institutions,  however,  do  not  vary  so  much  as  the 
proper  scientific  methods  of  treating  the  various  classes  of 
inmates,  and  the  advantages  of  the  group  system,  therefore, 
are  less  in  the  case  of  a  board  of  control  than  in  that  of  a 
board  having  merely  supervisory  powers.  In  states  which 
have  adopted  the  central  board  of  control  system,  the  tend- 
ency is  to  place  all  institutions,  charitable,  penal  and  reforma- 
tory, under  the  management  of  this  board.  Thus,  Iowa, 
Minnesota,  and  Ohio  are  among  the  states  in  which  the  pow- 
ers of  the  state  board  are  extended  over  all  the  charitable 
and  correctional  institutions.  In  many  states,  the  tendency 
is  away  from  the  group  system  or  from  the  system  of  sepa- 
rate institutional  boards  towards  a  more  consolidated  system 
of  management.  The  group  system  is  a  compromise  between 
separate  control  for  each  institution  and  complete  consolida- 
tion. 

Under  the  second  principle  of  classification,  namely,  with 
regard  to  the  kinds  of  powers  exercised,  the  various  state 
boards  may  be  roughly  divided  into  supervisory  boards  and 
boards  of  control.  The  supervisory  board  is  the  weaker  of 
the  two  from  the  standpoint  of  the  extent  of  centralization, 
and,  as  the  less  radical  step  in  this  direction,  was  usually  the 
first  to  be  taken.  Nearly  all  the  early  boards  in  states  east 
of  the  Mississippi  River,  such  as  Massachusetts,  New  York, 
Pennsylvania,  Ohio,  Indiana,  and  Illinois,  belonged  to  this 
type.  The  second  type,  namely,  the  state  board  of  control,  or 
central  administrative  board,  is  more  usual  in  the  Western 
States.  Although  early  examples  of  this  type  of  board  were 
established  in  New  York  and  Rhode  Island  in  1847  ^"^ 
1869  respectively,  its  main  development  began  with  the  or- 
ganization of  the  Kansas  State  Board  of  Control  in  1873,  and 

348 


CHARITIES  AND  CORRECTIONS 

since  then  boards  of  this  type  have  been  established  in  Wis- 
consin, Iowa,  Minnesota,  North  and  South  Dakota,  Ohio  and 
other  states. 

A  type  of  organization  somewhat  related  to  that  of  the 
supervisory  board  is  the  state  charities  aid  association.  This 
is  in  reality  a  private  organization,  but  may  be  given  official 
powers  of  visitation  and  report.  It  may  be  practically  the 
only  state  supervisory  agency,  as  was  formerly  the  case  in 
New  Jersey,  or  it  may  exist  in  addition  to  the  state  super- 
visory board,  as  in  New  York.  In  spite  of  its  limited  pow- 
ers, it  has  accomplished  some  desirable  reforms  in  New  Jer- 
sey, and  has  supplemented  the  work  of  the  State  Board  of 
Charities  in  New  York. 

Among  the  distinguishing  characteristics  of  the  supervisory 
type  of  state  board  are  that  it  is  superimposed  upon  the  sepa- 
rate boards  of  trustees  of  the  individual  institutions,  and 
that  its  functions  consist  principally  in  making  visits,  inspec- 
tions and  investigations,  giving  advice,  criticisms,  and  sug- 
gestions to  the  managing  boards  and  officers  of  the  institutions, 
making  reports  and  recommendations  to  the  governor  and 
legislature,  and  keeping  the  general  public  informed  as  far 
as  possible  in  regard  to  the  existing  and  more  advanced 
methods  of  conducting  the  institutions  under  its  supervision. 
The  purpose  originally  in  view  in  the  establishment  of  the 
supervisory  board  was  that  it  should  constitute  the  "eyes  of 
the  legislature,"  so  to  speak,  and  thus  relieve  the  latter  body, 
to  some  extent  at  least,  from  the  duty  of  inspection  which  it 
had  hitherto  performed  spasmodically.  These  supervisory 
boards  have  been  composed,  for  the  most  part,  of  public- 
spirited  men  and  women,^  who  have  had  sufficient  interest  in 
the  work  of  the  institutions  to  give  their  services  to  the  state 


'  Governor  Tilden  of  New  York,  who  was  the  first  to  appoint  a 
woman  to  membership  on  a  state  board  of  charities,  remarked  felici- 
tously that  he  did  so  in  order  "to  plant  a  sprig  of  grace  in  the  barren 
wastes  of  the  board." 

349 


AMERICAN  STATE  ADMINISTRATION 

practically  without  compensation  except  for  expenses.  The 
State  Board  of  Charities  of  New  York  is  composed  of  twelve 
members,  one  from  each  of  the  nine  judicial  districts  of  the 
state,  and  three  members  from  New  York  City,  all  ap- 
pointed by  the  governor  and  senate  for  a  term  of  eight  years. 
The  term  is  in  reality  longer  than  eight  years,  for  the  mem- 
bers are  generally  reappointed.  Political  considerations  enter 
very  little  into  the  appointments,  but  the  three  sects,  Protes- 
tant, Catholic,  and  Hebrew,  are  usually  represented.  It  is 
said  that,  during  the  first  thirty  years  of  the  history  of  this 
board,  no  change  in  its  personnel  occurred  except  by  death 
or  resignation.  It  should  be  noted  that  in  a  large  state  like 
New  York,  with  hundreds  of  institutions  and  thousands  of 
inmates,  the  work  of  inspection  and  supervision  cannot  be 
adequately  performed  in  person  by  an  unpaid  board,  whose 
members  are  not  expected  to  give  their  whole  time  to  the 
work.  The  degree  of  effectiveness  of  the  work  of  such 
boards,  therefore,  is  largely  determined  by  the  ability,  tact, 
and  wisdom  of  the  paid  secretary,  who,  with  the  staff  of  in- 
spectors, carries  on  much  of  the  actual  work.  Secretaries  of 
state  boards  of  charities  are  usually,  but  not  invariably,  ap- 
pointed by  the  board.  As  a  rule,  the  board  itself  is  the  fit- 
test and  most  competent  authority  to  appoint  its  own  secretary. 
Theoretically,  perhaps,  the  supervisory  board  has  no  direct, 
positive  power  of  effecting  needed  reforms  in  the  manage- 
ment of  the  institutions  nor  any  direct  means  of  compelling 
the  adoption  of  its  suggestions  and  recommendations.  Nev- 
ertheless, a  purely  advisory  board  can  and  does  effect  many 
reforms,  correct  many  abuses  and  prevent  others  from  arising 
by  means  of  its  power  of  disseminating  information  and 
bringing  to  bear  the  full  light  of  publicity  upon  the  conditions 
which  it  finds.  It  has  often  been  said  that  no  abuse  can 
long  continue  except  in  the  dark,  and  the  function  of  the 
purely  supervisory  board  is  to  shed  the  light  of  publicity  into 
every  corner  of  the  state  system  of  charities  and  correction. 

350 


CHARITIES  AND  CORRECTIONS 

The  history  of  state  supervisory  boards  shows  that  publicity 
has  undoubtedly  been  a  very  effectual  weapon  in  many  cases. 
The  usefulness  of  this  weapon,  however,  is  limited,  as  a  rule, 
to  the  correction  of  such  gross  and  obvious  abuses  that  the 
average  man,  having  no  special  knowledge  of  the  matter,  can 
appreciate  their  injurious  effect  upon  the  charitable  and  cor- 
rectional system  of  the  state.  As  a  remedy  for  more  subtle 
but  perhaps  equally  serious  evils  and  as  a  means  to  induce 
managing  boards  and  officers  to  adopt  more  scientific  and  up- 
to-date  methods  of  care  and  treatment,  publicity  is  not  always 
availing,  and  more  direct  and  positive  power  is  needed  by  the 
board  if  it  is  to  be  able  to  compel  the  carrying  out  of  its 
suggestions  and  recommendations. 

There  are,  however,  at  the  present  time  scarcely  any  purely 
advisory  state  boards  of  charities  and  correction.  Where  a 
board  wins  the  confidence  of  the  general  public  by  evincing 
a  capacity  for  excellent  work,  a  tendency  is  apt  to  develop 
on  the  part  of  the  legislature  to  confer  upon  it  various  ad- 
ministrative or  executive  powers,  so  that  it  ceases  to  be  purely 
advisory.  In  the  case  of  most  boards  which  were  at  first 
almost,  if  not  quite,  purely  advisory,  there  has  been  a  fairly 
steady  development  toward  giving  them  additional  powers  of 
an  administrative  character.  As  a  rule,  however,  these  ad- 
ditional administrative  powers  are  either  of  a  negative  sort, 
such  as  the  power  to  veto  proposed  plans  and  specifications 
for  new  buildings  or  enlargements  of  the  existing  plant,  and 
the  power  to  disapprove  the  fitness  of  associations  applying 
for  incorporation  as  private  charitable  organizations,  or  else 
they  relate  to  some  special  field  of  work,  such  as  establishing 
rules  for  the  admission,  retention,  transfer,  and  discharge  of 
inmates,  the  placing  of  dependent  children  in  homes,  and 
prescribing  uniform  methods  of  making  reports  and  of  keep- 
ing records  and  accounts.  In  order  that  they  may  not  be 
obstructed  in  making  investigations  of  institutional  manage- 
ment, many  of  these  boards  also  have  the  power  to  adminis- 

351 


AMERICAN  STATE  ADMINISTRATION 

ter  oaths  and  to  require  the  attendance  of  witnesses  and  the 
production  of  books  and  papers.  The  vesting  of  some  ad- 
ministrative powers  in  supervisory  boards  has  seemed  neces- 
sary in  some  cases  in  order  to  accomplish  needed  reforms, 
but  it  has  been  feared  by  some  persons  that  there  is  an  in- 
congruity and  even  incompatibiHty  in  the  combination  of 
supervisory  and  administrative  powers  in  the  hands  of  one 
board,  and  that  the  net  result  may  be  to  impair  the  prestige 
and  influence  of  the  board.  This  view,  however,  does  not 
seem  to  have  been  fully  borne  out  in  actual  practice  unless 
the  additional  administrative  powers  are  so  extensive  as  to 
amount  to  virtual  management  of  the  institutions.  In  some 
cases,  administrative  powers  have  been  conferred  upon  su- 
pervisory boards  to  such  an  extent  that  it  is  difficult  to  dis- 
tinguish them  from  boards  of  control.  The  California  State 
Board  of  Control,  for  example,  though  really  a  supervisory, 
board,  has  very  extensive  administrative  powers.  In  1906, 
Kentucky  attempted  to  ride  the  two  horses  of  supervision 
and  management  at  the  same  time  by  giving  its  state  board 
both  controlling  and  supervisory  powers  to  almost  the  same 
extent.  *Tn  their  supervisory  capacity,  the  members  of  the 
board  visit  and  inspect  the  institutions  of  which  they  are 
themselves  the  managers,  and  under  these  circumstances  it 
should  not  be  difficult  for  them  to  find  their  own  work  as 
managers  deserving  of  their  highest  commendation  as  super- 
visors." ^  So  long,  however,  as  the  state  board  does  not 
appoint  the  superintendents  and  officers  of  the  institutions 
and  the  separate  boards  of  trustees  for  each  institution  are 
not  abolished,  the  state  board  may  be  classed  roughly  as  su- 
pervisory. 

The  second  main  type  of  state  board,  classified  with  refer- 
ence to  the  extent  of  its  powers,  is  the  state  board  of  control, 
or  central  administrative  board.  Among  the  distinguishing 
characteristics  of  this  type  of  board  are  that  it  is  composed 

'  New  York  State  Library,  Review  of  Legislation,  igo6,  p.  35. 


CHARITIES  AND  CORRECTIONS 

of  a  small  number  of  salaried  members,  appointed  by  the 
governor  and  senate,  who  presumably  give  their  whole  time 
to  the  work,  and  that  it  supersedes  the  separate  boards  of 
trustees  for  the  individual  institutions  and  assumes  the  man- 
agement and  control  of  all  or  several  of  the  state  institu- 
tions. While  the  supervisory  board  is  an  additional  wheel 
in  the  machinery  of  state  administration,  the  establishment  of 
the  state  board  of  control  decreases  the  number  of  state 
agencies  dealing  with  charitable  and  correctional  matters. 
Under  the  board  of  control  plan,  each  institution  ceases  to 
be  virtually  a  small  kingdom  in  itself,  without  effective  con- 
nection with  other  institutions  or  with  the  state  government, 
and  becomes  a  unit  in  the  consolidated,  centralized  system 
of  management  and  control  through  the  state  board. 
The  board  of  control  may  be  established  either  as  a  substi- 
tute for  a  supervisory  board,  as  well  as  for  the  separate  boards 
of  trustees,  as  was  done  in  Wisconsin  and  Minnesota,  or  in 
place  only  of  the  separate  boards  of  trustees  where  no  other 
state  board  existed,  as  in  Iowa,  or  in  place  of  the  separate 
boards  but  not  as  a  substitute  for  the  supervisory  board,  which 
still  continues,  as  in  Illinois. 

A  state  board  of  control  is  a  public  corporation  with  power 
to  sue  and  be  sued,  and  to  hold  and  convey  the  title  to  prop- 
erty. Just  as  the  supervisory  board  has  some  administrative 
powers,  so  the  administrative  board  of  control  is  usually 
given  under  the  law  some  supervisory  powers,  such  as  those 
of  visitation,  inspection  and  investigation.  These,  however, 
are  comparatively  subsidiary  and  incidental  to  its  adminis- 
trative powers,  which  include  general  control  of  practically 
every  element  of  the  administration  of  the  various  institu- 
tions subject  to  its  power.  Among  the  most  important  of 
these  elements  of  administration  over  which  the  board  has 
control  are  the  appointment  and  removal  of  the  superintend- 
ents of  the  various  institutions,  the  fixation  of  the  salaries  of 
all  employees  of  the  institutions,  and  the  purchase  of   the 

353 


AMERICAN  STATE  ADMINISTRATION 

necessary  supplies.  In  the  exercise  of  these  important  powers 
lie  the  greatest  possibilities,  both  for  good  and  for  evil.  The 
exercise  of  these  powers  by  a  board  of  the  highest  ability, 
integrity  and  conscientiousness  may  bring  the  administration 
of  the  institutions  to  a  very  high  plane  of  efficiency,  but  in 
the  hands  of  less  worthy  persons,  they  may  result  in  great 
injury  to  the  institutions. 

One  of  the  principal  dangers  which  loom  up  in  the  case 
of  a  state  board  of  control  is  that  the  power  of  the  board 
to  appoint  officers  and  employees  may  be  used  for  partisan- 
political  purposes.  Where  the  members  of  the  board  them- 
selves are  appointed  largely  because  of  their  party  affiliations, 
the  same  considerations  are  apt  to  influence  the  actions  of 
the  board  in  making  appointments.  The  laws  creating  the 
board  usually  require  that  not  more  than  a  bare  majority  of 
its  three  or  five  members  shall  belong  to  the  same  political 
party,  but  a  bi-partisan  board  is  by  no  means  necessarily  a 
non-partisan  board.  There  have  at  times  been  complaints  of 
political  influences  in  the  appointments  to  and  of  the  boards 
in  such  states  as  Kansas  and  Wisconsin.  In  a  number  of 
states  having  boards  of  control,  there  have  been  far  too  fre- 
quent changes  of  the  superintendents,  as  well  as  lesser  offi- 
cers and  employees  of  the  institutions,  entailing  a  lack  of  con- 
tinuity of  policy  and  even,  at  times,  general  demoralization. 
These  abuses,  however,  have  steadily  decreased  with  the 
spread  of  the  merit  idea  in  civil  service,  and  have  seldom, 
if  ever,  been  so  great  as  they  were  under  the  old  system  of 
separate  boards  of  trustees.  In  states  having  state-wide  civil 
service  laws,  such  as  Illinois,  the  power  of  the  board  to 
appoint  the  employees  of  the  several  institutions  is  generally 
limited  by  the  operation  of  such  laws.  Iowa  goes  further 
still  and  wfthholds  from  the  board  the  power  to  appoint  or 
remove  the  subordinate  officers  or  employees  of  the  institu- 
tions, and  prohibits  the  levying  on  them  of  political  assess- 
ments.    This  is  decidedly  the  better  plan.     Even  if  political 

354 


CHARITIES  AND  CORRECTIONS 

considerations  should  not  enter,  it  is  of  doubtful  wisdom  to 
give  the  board  the  power  of  appointing,  over  the  heads  of 
the  superintendents,  the  subordinate  officers  and  employees 
upon  whom  the  superintendents  are  largely  dependent  for  the 
carrying  out  of  their  policies.  Having  full  power  over  the 
selection  of  the  superintendent,  the  board  has  no  one  to  blame 
but  itself  if  the  superintendent  is  not  a  competent  man,  and, 
if  he  is  a  competent  man,  he  should  have  power  to  select  his 
subordinate  officers  and  employees  without  the  interference 
of  the  board  and  even  without  the  restrictions  of  civil  service 
rules.  Laws  which  prohibit  boards  and  superintendents  from 
filling  the  payrolls  of  their  institutions  with  the  names  of 
their  political  henchmen  and  of  their  relatives  by  blood  and 
marriage  are  temporary  makeshifts  and  confessions  of  weak- 
ness. The  prime  desideratum  is  to  secure  the  services  of 
boards  and  superintendents  who  would  not  do  so,  even  if 
they  had  the  power. 

It  is  particularly  in  connection  with  the  fiscal  affairs  of  the 
state  institutions  that  the  state  board  of  control  plays  an 
important  role.  Not  only  does  it  fix  the  salaries  of  nearly 
all  the  officers  and  employees  of  the  institutions,  but  also 
makes  contracts  for  the  purchase  of  supplies.  In  institu- 
tional management  the  greatest  opportunities  both  for  waste 
and  for  economy  probably  arise  in  connection  with  the  pur- 
chase of  supplies.  Under  the  system  of  separate  boards  of 
trustees,  even  where  there  is  no  graft  or  favoritism,  there  is 
much  waste  in  the  purchase  of  supplies  on  account  of  the 
excessively  high  prices  paid  for  relatively  small  quantities  of 
goods.  If  several  or  all  of  the  state  charitable  and  correc- 
tional institutions  combine  for  the  purchase  of  supplies,  the 
chances  are  that,  other  things  being  equal,  they  will  be  able 
to  secure  a  better  quality  of  goods  at  lower  prices  than  could 
each  institution  acting  separately.^     Even  if  the  prices  paid 

*  An  exception  to  this  might  be  found  in  the  more  perishable  articles 
which  can  advantageously  be  purchased  in  the  local  markets. 

355 


AMERICAN  STATE  ADMINISTRATION 

were  not  lower,  a  combination  of  institutions  could  more  eas- 
ily adopt  standard  specifications  for  staple  articles  and  more 
easily  employ  experts  to  test  the  quality  of  goods  delivered  to 
see  that  they  meet  the  specifications.  In  order  to  bring  about 
the  system  of  joint  purchase,  however,  it  is  not  essential  that 
a  state  board  of  control  be  established.  Even  in  the  case  of 
separate  boards  of  trustees,  some  advance  in  the  economy  of 
purchases  may  be  efifected  through  the  requirement  of  uni- 
form reports  to  be  made  periodically  by  the  various  institu- 
tions to  the  state  supervisory  board,  making  it  easy  to 
compare  the  prices  paid  for  the  same  article  by  different  insti- 
tutions. Such  publicity  is  apt  to  engender  a  healthy  rivalry 
among  the  institutions,  each  striving  to  make  a  showing  of 
economical  management.  This,  however,  is  not  joint  pur- 
chase, and  some  of  the  economies  inherent  in  large-scale 
buying  could  not  be  secured  under  this  system.  A  plan  of 
joint  purchase  without  the  establishment  of  a  board  of  con- 
trol is  found  in  New  York,  where  the  office  of  fiscal  super- 
visor of  state  charities  was  created  in  1902.  This  officer, 
appointed  by  the  governor,  is  given  practically  complete  con- 
trol over  the  financial  affairs  of  the  state  charitable  institu- 
tions. The  superintendents  of  these  institutions  are  required 
to  submit  periodical  estimates  of  their  expenditures  to  him 
for  approval  and  revision.  It  is  also  provided  that  joint 
contracts  for  the  purchase  of  certain  supplies  may  be  made 
by  a  committee  of  superintendents  appointed  by  the  fiscal 
supervisor,  such  contracts  to  be  subject  to  his  approval.^ 

*  The  central  control  over  the  purchase  of  supplies  in  New  York 
was  subjected  to  a  thorough  investigation  by  Mr.  H.  C.  Wright  for 
the  New  York  State  Charities  Aid  Association  and  the  results  pub- 
lished in  191 1  under  the  title  "Methods  of  Fiscal  Control  of  State 
Institutions."  His  findings  were  that  the  fiscal  supervisor  had  striven 
primarily  to  save  money  and  only  secondarily  to  promote  the  welfare 
of  the  inmates,  and  as  a  result  had  attained  cheapness  without  econ- 
omy; that  the  fiscal  supervisor  had  so  administered  his  office  as  to 
discourage  the  ambition  of  the  superintendents,  lessen  their  responsi- 
bility and  decrease  the  amount  of  attention  and  strength  which  they 


CHARITIES  AND  CORRECTIONS 

The  fiscal  supervisor,  as  organized  in  New  York,  is  an 
officer  charged  only  with  the  financial  oversight  of  the  insti- 
tutions. It  is  true  that  this  power  over  financial  matters  may 
enable  this  officer  to  control  in  large  measure  the  manifold 
details  of  institutional  life  and  management,  but  his  primary 
interest  and  object  is  apt  to  be  fiscal  rather  than  humanitarian. 
The  work  of  the  state  board  of  control,  on  the  other  hand,  is 
broader.  Its  object  is  or  should  be  not  only  to  see  that  the 
institutions  are  economically  managed,  but  to  appoint  the  best 
qualified  superintendents  available  and  to  take  care  that  the 
inmates  are  afforded  the  best  care  and  treatment  possible  un- 
der the  circumstances.  A  board  of  control,  therefore,  gives  a 
relatively  less  amount  of  attention  to  purely  fiscal  matters 
than  does  a  fiscal  supervisor,  and  while  this  may  have  some 
disadvantages,  it  nevertheless  tends  to  broaden  the  attitude  of 


could  give  to  the  care  of  the  inmates ;  and  that,  inasmuch  as  the  fiscal 
supervisor  could  not  give  his  personal  attention  to  all  the  details  of 
his  office,  the  requests  of  the  superintendents  for  badly  needed  articles 
were  sometimes  turned  down  by  clerks  in  the  central  office  who  had 
no  adequate  knowledge  or  acquaintance  with  conditions  in  the  institu- 
tions. He  found  also  that  the  quality  of  beef  and  other  articles  fur- 
nished the  institutions  was  much  lower  than  that  specified  in  the  con- 
tract. In  Part  II  of  his  report,  he  made  a  comparative  study  of  the 
methods  of  fiscal  control  in  New  York,  Indiana  and  Iowa.  He  found 
that  it  cost  $i.oo  to  supervise  $46.30  expended  by  the  institutions  in 
New  York,  while  for  the  same  amount  Indiana  obtained  a  super- 
vision of  $78.80.  In  Iowa  the  same  amount  paid  for  the  supervision 
of  $54.80.  The  cost  per  inmate  of  such  supervision  in  the  three  states 
was:  Indiana,  $2.85;  Iowa,  $3-70;  and  New  York,  $5.18.  The  report 
tends  to  show  that,  while  central  control  of  purchases  of  supplies  may 
be  economical  up  to  a  certain  point,  beyond  that  point  no  proportionate 
gain  is  likely  to  be  secured.  It  is  to  be  noted  that  the  findings  of  the 
report  with  reference  to  the  methods  obtaining  in  the  three  states 
compared  are  not  conclusive  as  to  the  comparative  merits  of  these 
methods  or  systems  in  themselves,  but  only  as  actually  administered 
in  the  particular  states  selected.  It  should  be  added  that,  since  the 
Wright  report  was  made,  there  has  been  a  considerable  improvement 
in  the  administration  of  the  office  of  fiscal  supervisor.  Governor 
Whitman,  however,  in  his  annual  message  of  1916,  recommended  that 
this  office  be  abolished. 

357 


AMERICAN  STATE  ADMINISTRATION 

the  board  and  to  work  for  the  best  interests  of  the  institu- 
tions. A  compromise  which  aims  to  secure  the  advantages  of 
the  broader  point  of  view  of  the  board  and  also  of  the  special- 
ized knowledge  of  the  fiscal  supervisor  is  found  in  Illinois, 
where  the  fiscal  supervisor  is  one  of  the  members  of  the 
board,  and  exercises  his  powers  in  connection  with  the  fiscal 
affairs  of  the  institutions  in  cooperation  with,  and  under  the 
supervision  of,  the  board.  The  cooperation  of  the  superin- 
tendents of  the  various  charitable  institutions  in  the  consid- 
eration of  fiscal  matters  wherein  their  familiarity  with  condi- 
tions is  of  value  is  also  secured  in  Illinois  through  the  annual 
meetings  of  the  Board  of  Joint  Estimate,  composed  of  the 
superintendents  of  the  several  institutions  and  a  committee  of 
the  State  Board  of  Administration. 

The  question  as  to  the  relative  merits  of  the  state  board  of 
control  and  the  state  supervisory  board  was  formerly  much 
debated.  In  favor  of  the  state  board  of  control,  it  was  ar- 
gued that  centralized  management  conduces  to  financial 
economy  through  the  reduction  of  "over-head"  expense  or 
administrative  charges,  such  as  the  elimination  of  duplicate 
clerks,  through  large-scale  buying  and  safeguarding  deliver- 
ies, and  through  uniformity  and  standardization  of  accounts, 
records,  reports,  specifications,  and  business  methods.  Fur- 
thermore, such  a  board  would  conduce  to  administrative  effi- 
ciency, since  its  members  give  their  whole  time  and  attention 
to  the  work,  whereas  supervisory  boards,  serving  without 
pay,  are  not  apt  to  be  so  well  trained,  so  familiar  with  con- 
ditions, nor  so  constant  in  their  attention  to  the  duties  of  the 
office.  Again,  it  was  pointed  out  that  the  board  of  control 
system  largely  does  away  with  the  influences  which  placed  the 
state  institutions  practically  under  local  control,  and  also 
destroys  the  pernicious  local  lobbies  which  worked  at  every 
legislative  session  for  increased  appropriations  for  the  sepa- 
rate   institutions. 

On   the   other   hand,   those  who   favored  the   supervisory 

358 


CHARITIES  AND  CORRECTIONS 

board  system  pointed  out  that,  from  the  standpoint  of  finan- 
cial economy,  a  system  of  joint  purchase  of  supplies  might  be 
instituted  without  creating  a  board  of  control,  and  that  boards 
of  control  were  too  apt  to  emphasize  the  financial  and  busi- 
ness side  of  management,  and  neglect  the  more  important  ob- 
ject of  efficiency  in  the  adaptation  of  methods  of  care  and 
treatment  to  the  needs  of  the  inmates  of  the  different  institu- 
tions. They  argued  that  the  administration  of  the  institu- 
tions by  the  board  of  control  is  apt  to  become  rigid,  bureau- 
cratic, and  mechanical,  and  to  discourage  ambition,  initiative 
and  originality  on  the  part  of  the  superintendents  in  devel- 
oping improved  methods  of  care  and  treatment.  Interest  in 
general  problems  of  charity  and  correction  and  the  education 
of  the  public  in  such  matters,  it  was  asserted,  were  not  fos- 
tered to  any  considerable  extent  by  the  board  of  control. 
Furthermore,  attention  was  called  to  the  greater  opportuni- 
ties which  the  board  of  control  system  offers  for  the  distri- 
bution of  patronage  to  party  workers  and  the  greater  danger 
of  partisan  politics  and  the  spoils  system  being  injected  into 
the  management  of  the  institutions.  Finally,  perhaps  the  most 
important  objection  of  all  was  that  the  board  of  control  was 
subject  to  no  adequate  supervision  by  any  other  state  agency. 
It  is  not  necessary  for  us  now  to  weigh  these  conflicting 
arguments  and  make  a  decision  between  them.  Conditions  in 
the  several  states  are  so  different  that  it  cannot  be  inferred 
that  a  system  which  works  well  or  ill  in  one  state  will  neces- 
sarily do  the  same  in  another.  IMoreover,  the  character  of 
the  men  and  women  who  occupy  positions  on  the  board  is 
frequently  a  more  important  factor  than  the  particular  type 
of  board.  Furthermore,  it  is  now  recognized  that  there  is 
no  necessary  incompatibility  in  the  existence  of  the  two  types 
of  boards  side  by  side  in  the  same  state.  It  is  recognized 
that  in  the  administration  of  charities  and  correction,  there  is 
a  financial  or  business  side  and  a  professional  or  humanitarian 
side.     Business  management  is  best  represented  by  a  board 

359 


AMERICAN  STATE  ADMINISTRATION 

of  control,  while  the  promotion  of  advanced,  scientific  meth- 
ods of  care  and  treatment  of  inmates  and  the  advocacy  and 
adoption  of  broad  social  measures  for  the  prevention  of 
moral,  mental  and  physical  disease  are  services  w^hich  can  be 
best  performed  by  supervisory  boards,  composed  of  public- 
spirited,  philanthropic,  disinterested  men  and  women,  imbued 
with  love  for  the  work  and  cooperating  with  competent  super- 
intendents. 

The  realization  of  these  facts  has  received  its  concrete 
manifestation  in  the  introduction  of  the  dual  system  of  simul- 
taneous control  and  supervision  by  separate  state  agencies. 
From  1881  to  1890  Wisconsin  had  both  a  central  board  of 
control  and  a  state  supervisory  board,  but  there  was  no  con- 
scious attempt  to  establish  a  workable  dual  system,  for,  at 
that  period,  the  two  boards  were  still  considered  essentially 
incompatible.  In  1902  New  York  introduced  a  modified  form 
of  the  dual  system  in  connection  with  its  charitable  institu- 
tions and  in  1905  in  connection  with  its  insane  asylums.  In 
1907  Minnesota  established  a  state  board  of  visitors  with 
supervisory  powers  in  addition  to  the  existing  board  of  con- 
trol. Probably  the  best  example  of  the  dual  system,  however, 
is  that  found  in  IlHnois,  where,  since  1909,  there  has  existed 
a  state  board  of  administration  with  powers  of  management 
and  control,  and  also  a  state  charities  commission  with  purely 
advisory  powers.  One  of  the  chief  objections  that  might  be 
urged  against  the  dual  system  is  the  possibility  of  conflict  or 
lack  of  cooperation  between  the  two  boards.  Where  the  su- 
pervisory board,  however,  is  given  no  administrative  powers, 
as  in  Illinois,  the  danger  of  such  conflict  appears  to  be  slight. 
It  should  be  pointed  out,  moreover,  that  even  from  the  stand- 
point of  financial  economy  the  dual  system  has  this  advan- 
tage, that,  while  the  board  of  control  may  endeavor  to  secure 
the  more  immediate  economies,  the  ultimate  function  of  the 
supervisory  board  is  to  promote  the  much  more  far-reaching 
and  important  economy  of  securing,  by  preventive  measures, 

360 


CHARITIES  AND  CORRECTIONS 

a  proportionate  decrease  in  the  number  of  persons  depend- 
ent on  the  state's  care,  and  thus  incidentally  decrease  the  ex- 
penditures of  the  state  for  this  purpose.  It  is  true  that  the 
introduction  of  scientific  methods  of  care  and  treatment  may 
in  some  cases  prolong  the  lives  of  inmates  without  effecting 
such  a  cure  as  to  warrant  their  discharge  from  the  institu- 
tion, and  thus  tend  to  increase  the  total  number  of  inmates. 
But  it  should  be  possible  to  counterbalance  this  tendency  and 
to  decrease  the  total  amount  of  dependency  through  the  oper- 
ation of  enlightened  measures  of  prevention  and  social  con- 
trol, combined  with  time  and  patience.  In  order  to  institute 
such  measures  of  prevention,  the  powers  of  the  state  agency 
would  have  to  be  broadened  so  as  to  include  some  degree  of 
supervision  not  only  over  the  inmates  of  institutions,  but  also 
over  the  activities  of  the  people  at  large.^" 

Although  the  two  boards  in  the  dual  system  may  be  as- 
signed entirely  different  functions  so  as  to  avoid  the  danger 
of  conflict,  nevertheless,  this  system  is  somewhat  lacking  in 
the  elements  of  simplicity  and  definiteness  of  responsibility. 
Any  reorganization  of  the  system  should  be  made  in  the 
light  of  two  factors  in  the  situation :  first,  that  the  whole 
system  should  be. directly  linked  with  one  of  the  chief  execu- 
tive departments  of  the  state  government,  and,  secondly,  that, 
other  things  being  equal,  a  single  commissioner  is  more  effi- 
cient as  an  executive  body  than  a  board,  while  as  an  advisory 
body  a  board  is  to  be  preferred.  A  plan  which,  to  some  ex- 
tent, recognizes  these  factors  was  proposed  in  1914  by  the 
Massachusetts  Commission  on  Economy  and  Efficiency.  Ac- 
cording to  this  proposed  plan,  there  was  to  be  a  board  having 
general  supervision  of  all  the  state  charitable  and  correctional 
institutions,  but  the  actual  management  of  the  institutions 
was  to  be  vested  in  a  single  commissioner  or  director  ap- 
pointed by  the  board.     The  director  was  to  have  power  in 

^°  Such  extended  authority  has  been  conferred  upon  the  Board  of 
Public  Welfare  of  Kansas  City,  Mo. 

361 


AMERICAN  STATE  ADMINISTRATION 

turn  to  appoint  such  deputies,  executive  secretaries,  superin- 
tendents and  other  officers  as  might  be  necessary  to  carry  on 
the  administration  of  the  institutions  in  its  various  divi- 
sions.^^ 

Before  concluding  this  chapter,  a  few  words  should  be 
added  in  regard  to  certain  topics  which  relate  more  particu- 
larly to  penal  and  correctional  administration.  These  in- 
clude such  matters  as  prison  control,  the  indeterminate  sen- 
tence, pardon,  parole,  probation,  and  convict  labor. 

The  theory  of  the  law  in  regard  to  the  treatment  of  the 
criminal  is  fundamentally  that  of  punishment,  and  the  pro- 
tection of  society,  with  lesser  emphasis  on  reformation  and 
the  prevention  of  crime.  The  penal  law  is  enacted  by  the 
central  state  government,  but,  on  account  of  the  considerable 
degree  of  administrative  decentralization  which  still  prevails, 
the  carrying  out  of  the  law  is  not  altogether  in  the  hands  of 
the  state  authorities,  but  is  shared,  as  we  have  seen,  by  local 
officials,  who,  in  most  of  the  American  states,  administer  the 
local  penal  institutions,  subject  usually  to  more  or  less  super- 
vision by  the  state.  Not  only  is  the  sphere  of  action  of  the 
state  administrative  authorities  curtailed  by  the  extent  of  the 
control  exercised  by  local  officials,  but  also  by  legislative  in- 
terference in  matters  which  belong  more  appropriately  to  the 
administrative  or  judicial  authorities.  This  excessive  legisla- 
tive control,  however,  has  been  gradually  modified  in  various 
ways.  For  example,  the  Constitution  of  the  United  States 
has  deprived  the  state  legislatures  of  the  power  of  passing 

"The  proposed  New  York  Constitution  of  1915  provided  for  a  state 
department  of  charities  and  correction  with  a  secretary  at  its  head, 
who  should  have  power  of  inspection  and  supervision  over  all  state 
charitable  institutions,  state  hospitals  for  the  insane,  state  prisons  and 
other  state  correctional  institutions.  In  the  Illinois  Constitutional 
Convention  of  1870,  the  ^proposition  was  brought  forward  to  create  a 
superintendent  of  public  charities,  with  supervision  over  all  the  chari- 
table institutions  of  the  state,  but  it  was  not  adopted.  Debates  and 
Proceedings,  i,  pp.  749-753- 

362 


CHARITIES  AND  CORRECTIONS 

bills  of  attainder,  and,  by  implication,  bills  of  pains  and  pen- 
alties. Again,  judicial  discretion  has  been  increased  through 
the  practice  of  fixing  in  the  penal  law  maximum  and  minimum 
degrees  of  punishment  for  particular  crimes,  through  sus- 
pension of  sentence  and  conditional  release.  Finally,  the 
power  and  discretion  of  administrative  officials  has  been  in- 
creased through  the  so-called  indeterminate  sentence  and  the 
parole. 

When  the  main  object  in  penal  legislation  and  prison  ad- 
ministration was  the  punishment  of  the  criminals  and  their 
segregation  from  society,  little  attempt  was  made  to  classify 
the  criminals  themselves  or  to  segregate  properly  certain 
classes  of  them  from  others.  With  the  growth  of  the  idea  of 
reformation  of  the  criminal,  however,  classification  of  crimi- 
nals and  the  segregation  of  the  different  classes  from  each 
other  has  come  to  be  regarded  as  a  necessary  prerequisite  to 
reformation.  The  principal  classifications  are  into  male  and 
female,  old  and  young,  and  habitual  and  first  offenders.  At 
first,  separate  cells  or  compartments  in  the  same  building 
were  provided  for  the  different  classes,  and  this  is  sometimes 
the  only  kind  of  separation  attempted.  Many  states,  how- 
ever, have  now  established  entirely  separate  institutions  for 
the  detention  of  these  different  classes  of  offenders.  Sepa- 
rate state  prisons  for  women  and  reformatories,  sometimes 
called  reform  schools  or  houses  of  correction,  for  youthful 
and  first  offenders,  increase  the  possibilities  of  the  reclama- 
tion of  these  classes  of  delinquents  to  the  ranks  of  normal 
society. 

Another  essential  prerequisite  to  the  reformation  of  the 
criminal  is  that  he  should  not  remain  idle  during  confine- 
ment. The  disciplinary  effect  of  labor  is  recognized  as  an 
important  element  in  fitting  and  educating  him  again  to  take 
his  place  as  a  normal,  industrious  member  of  society.  A  sec- 
ondary object  in  affording  work  to  the  prisoner  is  that  he 
may  contribute,  at  least  in  part,  to  the  expense  of  his  main- 

363 


AMERICAN  STATE  ADMINISTRATION 

tenance  and  thus  reduce  the  burden  upon  the  taxpayer,  and 
to  this  end  his  labor  should  be  economically  productive  in 
character.  The  labor  should  also  be  of  a  kind,  if  possible, 
which  affords  industrial  training  and  thus  better  fits  the 
prisoner  to  become  a  productive  member  of  society  when  he 
is  released  from  custody. 

Although  the  desirability  of  convict  labor  as  a  general 
principle  is  everywhere  admitted,  there  is  much  difference  of 
opinion  and  diversity  of  practice  in  the  application  of  the 
principle.  Difficulties  arise  in  connection  with  the  process 
of  production  or  the  conditions  under  which  it  shall  be  car- 
ried on,  and  also  in  connection  with  the  distribution  of  the 
product.  The  thirteenth  amendment  to  the  Constitution  of 
the  United  States  recognizes  by  implication  that  involuntary 
servitude  may  exist  as  a  punishment  for  crime  whereof  the 
party  shall  have  been  duly  convicted.  Under  this  theory,  the 
productive  value  of  the  convict's  labor  becomes  the  property 
of  the  state,  and  may  be  disposed  of  by  the  state  in  such 
manner  as  it  sees  fit.  The  convict  laborer  has  no  legal  right 
to  compensation,  but  the  state  may,  and  as  far  as  practicable 
should,  accord  it  to  him  or  to  his  family. 

A  method  of  disposing  of  convict  labor  which  was  for- 
merly prevalent  and  is  still  found  in  some  states  is  that  known 
as  the  contract  system,  or  lease  system,  under  which  the  labor 
of  the  convicts  is  let  to  contractors  either  at  a  per  diem  rate 
or  on  the  piece-price  plan.  Under  both  the  contract  and  the 
lease  system,  the  convicts  are  in  the  employ  of  the  contrac- 
tors, but  these  systems  differ,  in  that  under  the  former  the 
labor  is  usually  carried  on  in  the  prison  under  the  direction 
of  the  prison  officials,  while  under  the  lease  system,  the  con- 
tractor has  greater  control  over  the  discipline  of  the  prisoner 
and  the  direction  of  his  work.  Although  the  contract  system 
is  the  better  of  the  two,  both  are  highly  objectionable,  and  in 
practice  have  been  productive  of  gross  abuses,  because  the 
contractors   are  sometimes  unscrupulous  and,  at  best,  have 

364 


CHARITIES  AND  CORRECTIONS 

little  interest  in  the  convict  except  to  get  out  of  him  the 
largest  possible  amount  of  work. 

These  systems  are  both  giving  way  to  that  v^hereby  the 
laborer  vv^orks  for  the  state  and  not  for  a  private  contractor. 
This  plan  may  take  the  form  of  labor  in  the  construction  and 
repair  of  roads  and  other  public  works.  Such  outdoor  labor 
has  a  beneficial  effect  upon  the  health  of  the  men,  and  the 
system  of  placing  men  in  this  work  upon  their  honor,  has, 
when  operated  under  proper  restrictions,  worked  well  in  some 
states.  This  method  of  working  prisoners,  however,  is  open 
to  the  objections  that,  if  carried  on  in  frequented  places,  it 
may  hinder  the  reformation  of  the  prisoners  by  subjecting 
them  to  the  disgrace  of  public  ridicule,  and  that  it  does  not 
train  them  for  any  skilled  occupation  when  released. 

The  state  as  the  employer  of  convict  labor  acts  under  two 
plans  or  systems,  known  as  state  account  and  state  use.  Un- 
der these  plans,  the  state  prison  becomes  a  sort  of  state  fac- 
tory or  industrial  plant  for  the  production  of  articles  either 
to  be  sold  in  the  open  market  or  to  be  used  by  the  state,  or 
both.  A  board  known  in  several  states  as  the  State  Board  of 
Classification,  composed  in  New  York  of  the  Fiscal  Super- 
visor of  State  Charities,  the  State  Commissioner  of  Prisons, 
the  Superintendent  of  State  Prisons  and  the  State  Hospi- 
tal Commission,  fixes  the  styles  and  prices  of  prison-made 
goods.  When  the  goods  thus  produced  are  sold  on  the  state 
account  plan  in  the  open  market,  the  state  thus  becomes  a 
direct  competitor  with  free  labor.  Since  the  state  is  not 
subject  to  the  same  economic  laws  as  private  employers  of 
labor,  this  competition  might  prove  a  serious  injury  to  free 
labor,  were  it  not  that  the  total  amount  of  prison-made 
goods  is  only  a  small  fraction  of  one  per  cent  of  the  whole 
mass  of  goods  produced  in  the  country.  Nevertheless,  the 
hostility  of  labor  unions  to  direct  state  competition  in  the 
open  market  has  been  an  important  influence  in  bringing 
about  the  introduction   of  the   state   use  plan.     Under  this 

365 


AMERICAN  STATE  ADMINISTRATION 

plan,  prison-made  goods  are  used  in  the  public  institutions  of 
the  state  or  of  its  political  divisions.  This  system  was  first 
established  in  New  York  in  1897.  In  that  state  the  products 
of  prison  labor  can  be  disposed  of  in  no  other  way,  but 
other  states  in  which  the  plan  has  been  introduced,  such  as 
Illinois,  provide  that  any  surplus  of  prison  products  up  to  a 
certain  extent  which  cannot  be  used  in  the  public  institutions 
may  be  disposed  of  in  the  open  market. 

The  operation  of  the  state  use  plan  has  not  been  without 
difficulties.  Although  competition  with  free  labor  is  indirect, 
it  has  not  been,  and  cannot  be  wholly,  eliminated.  The  pro- 
duction of  certain  articles  and  certain  lines  of  work  have 
sometimes  been  excepted  from  the  range  of  prison  industries, 
apparently  for  no  other  than  political  reasons.  In  order  not 
to  compete  too  much  with  any  particular  line  of  industry,  an 
attempt  has  been  made  to  diversify  prison  labor  as  far  as 
possible,  but  this  has  entailed  large  expense  in  the  installa- 
tion cf  machinery  and  in  other  ways.  The  business  man- 
agement of  prison  industry  has  sometimes  tended  to  distract 
the  attention  of  wardens  and  other  prison  officials  from  other 
equally  important  duties.  Public  institutions  have  sometimes 
been  compelled  to  pay  for  inferior  grades  of  articles  and 
supplies.  The  New  York  law  requires  state,  county,  city,  and 
village  authorities  to  furnish  the  State  Commission  of  Prisons 
annually  an  estimate  of  prison-made  goods  necessary  to  be 
purchased  during  the  ensuing  year,  and  further  makes  it  the 
duty  of  such  authorities  to  make  requisition  upon  the  Com- 
mission for  such  articles  used  by  them  as  are  manufactured 
in  the  state  prisons.  Purchase  of  such  articles  elsewhere, 
without  the  certificate  of  the  Commission  showing  inability 
to  furnish  the  goods  required,  is  made  a  civil  and  criminal 
offense.  The  Commission  has  complained,  however,  that  the 
law  is  almost  completely  ignored  by  many  municipalities, 
which  have  for  years  neither  submitted  the  required  esti- 
mates nor  purchased  any  prison-made  goods,  and  as  a  result 

366 


CHARITIES  AND  CORRECTIONS 

many  convicts  are  left  in  idleness.  State  use  is  probably  the 
best  system  yet  evolved,  but  it  is  evident  that  it  is  by  no 
means  an  ideal  plan,  and  the  problem  of  convict  labor,  with 
its  vast  social  implications,  is  as  yet  a  long  way  from  a  satis- 
factory solution. 

What  amount  of  discipline  and  training  is  necessary  to  re- 
form a  criminal,  and  who  is  to  have  the  power  of  determin- 
ing when  the  process  of  reformation  has  been  completed? 
Although  the  criminal  law  is  based  largely  on  the  idea  of 
punishment,  there  is  also  involved  the  idea  of  protection  to 
society  at  large.  The  criminal  law  provides  for  the  punish- 
ment of  specific  crimes  by  imprisonment  for  a  term  of  years, 
either  definite  or  within  limits.  The  presumption  of  the  law 
is,  not  only  that  incarceration  for  that  term  of  years  will 
satisfy  justice  and  provide  adequate  punishment  for  the  of- 
fense, but  also  that,  at  the  end  of  such  period  of  punishment, 
the  offender  will  have  been  sufficiently  cured  of  his  evil  tend- 
encies to  make  it  safe  to  again  turn  him  loose  upon  society. 
If  this  can  properly  be  said  to  be  one  of  the  ends  of  the 
criminal  law,  it  must  be  admitted  that  it  frequently  fails  to 
attain  it.  This  is  evidenced  by  the  large  number  of  released 
prisoners  who  again  fall  into  criminal  ways.  Moreover,  the 
wide  difference  in  the  penalties  provided  in  different  states 
for  the  same  nominal  offense  indicates  that  the  system  of 
legislative  fixation  of  terms  of  imprisonment  for  particular 
offenses  is  largely  guess-work  and  without  scientific  basis. 
It  is  impossible  for  the  legislature  to  fix  a  definite  penalty 
for  a  certain  crime  which  will  fit  all  cases.  In  view  of  this 
fact,  various  modifications  in  the  definite  sentence  laws  have 
been  made.  The  existence  of  the  pardoning  power  in  the 
governor  is  a  means  of  softening  the  rigidity  of  the  definite 
sentence  law  where  it  would  work  hardship  in  particular 
cases.  Moreover,  provision  may  be  made  in  the  law  for 
shortening  the  term  of  imprisonment  as  a  reward  for  good 
behavior,  or  for  life  sentences  upon  the  third  conviction  for 

367 


AMERICAN  STATE  ADMINISTRATION 

a  felony.^2  The  discretion  of  the  court  may  be  widened  by 
a  law  providing  maximum  and  minimum  terms  of  imprison- 
ment for  particular  crimes,  the  exact  term  to  be  fixed  by  the 
court.  In  view  of  the  principle,  however,  that  no  prisoner 
should  be  rele:.sed  until  such  time  as  he  gives  satisfactory 
evidence  that  this  step  can  be  taken  with  safety  to  his  own 
interests  and  to  those  of  society,  even  the  court  is  frequently 
not  in  a  position  where  it  can  intelligently  settle  in  advance 
the  length  of  sentence  necessary  to  effect  a  satisfactory  refor- 
mation of  the  offender. 

In  order  to  meet  this  situation  the  so-called  indeterminate 
or  indefinite  sentence  has  been  provided  by  law  in  a  number 
of  states.  Under  this  law  the  function  of  the  court  is  limited 
to  determining  whether  the  accused  is  guilty.  If  so,  the 
question  as  to  the  length  of  his  term  is  left  to  the  administra- 
tive authorities  of  the  institution  to  which  he  is  committed, 
or  to  a  special  board,  within  the  maximum  and  minimum  lim- 
its fixed  by  law.  The  indeterminate  sentence  was  first  put 
into  operation  in  this  country  in  connection  with  the  Elmira 
Reformatory  in  1877,  and  it  is  in  connection  with  re- 
formatory rather  than  penal  institutions  that  it  finds  its  most 
appropriate  application.  The  effect  of  its  introduction  has 
been  to  increase  the  average  length  of  time  served  by  pris- 
oners, as  compared  with  the  definite  sentence  plan.  The 
determination  of  the  question  as  to  whether  the  discipline  and 
training  which  the  prisoner  has  received  has  been  sufficient 
to  qualify  him  again  to  become  a  normal  member  of  society 
is  a  matter  of  such  delicacy  and  responsibility  that  it  should 
be  undertaken  only  in  those  institutions  whose  officials  have 
adequate  means  of  judging. 

Even  under  the  best  of  conditions,  human  judgment  is,  of 
course,  fallible,  and,  in  order  to  guard  against  errors  of 
judgment  resulting  in  premature  release,  the  principle  of  the 
parole  is  combined  with  that  of  the  indeterminate  sentence, 

**Acts  of  Indiana,  1907,  Ch.  82. 

368 


CHARITIES  AND  CORRECTIONS 

to  which  it  is  the  natural  complement  and  corollary.  The 
date  of  his  discharge  is  one  of  the  most  momentous  in  the 
life  of  the  convict.  No  matter  how  complete  his  reformation 
may  have  appeared  to  be  while  in  prison,  if,  upon  his  release, 
he  finds  all  the  world  against  him,  he  is  apt  to  relapse  into 
his  former  ways.  If,  however,  employment  can  be  found 
for  him  and  some  oversight  exercised  over  him,  his  chances 
of  reformation  are  usually  good.  By  parole  is  meant  the  con- 
ditional release  from  imprisonment  of  a  sentenced  convict  at 
some  point  between  the  maximum  and  minimum  limits  of  the 
sentence.  The  beginning  of  the  period  of  parole  is  thus  not 
full  release,  but  imprisonment  in  the  institution  is  succeeded 
by  a  probationary  period  of  supervision  or  non-institutional 
control. 

The  important  elements  in  an  efficient  system  of  parole  are 
a  competent  board  of  parole  and  adequate  supervision  of  the 
paroled  convict  by  well  qualified  parole  officers.  The  board 
of  parole  is  composed  either  of  the  board  of  managers  of  the 
institution  or  of  a  special  body  of  officers.  In  New  York 
the  board  of  parole  for  the  state  prisons  consists  of  the  state 
superintendent  of  prisons  and  two  other  members  appointed 
by  the  governor,  while  the  boards  of  managers  of  the  reform- 
atories and  training  schools  act  as  boards  of  parole  for  their 
own  institutions.  In  Illinois,  the  board  of  managers  of  the 
state  reformatory  acts  in  a  similar  capacity,  but  the  state 
board  of  pardons,  consisting  of  three  members  appointed  by 
the  governor  and  senate,  releases  prisoners  on  parole  from 
the  state  penitentiaries.  The  number  of  parole  officers  is 
comparatively  small  even  in  the  most  advanced  states,  and 
many  states  have  no  special  parole  officers,  strictly  speaking, 
apart  from  the  board  of  parole  itself,  to  which  the  prisoners 
released  on  parole  are  required  to  report  periodically.  They 
may,  however,  be  placed  under  the  supervision  of  the  sheriff 
or  police  officers.  While  on  parole,  the  prisoner  is  still 
legally  in  the  custody  of  the  warden  of  the  prison,  and,  if  he 

369 


AMERICAN  STATE  ADMINISTRATION 

violates  his  parole,  he  is  subject  to  be  again  taken  into  cus- 
tody and  imprisoned. 

There  can  be  little  question  as  to  the  value  of  the  indeter- 
minate sentence  and  parole  laws  in  making  for  the  reforma- 
tion of  the  prisoner.  It  is  true  that  some  of  those  released 
on  parole  relapse  into  crime,  but  not  as  many  as  under  the 
definite  sentence  system.  Objection  to  these  laws  may  be 
based,  however,  upon  faults  in  their  drawing  up  or  in  their 
administration.  They  should  not  be  applied  to  hardened 
felons  nor  to  petty  misdemeanants.  Moreover,  in  order  to 
give  the  working  of  the  laws  a  fair  trial,  there  should  be 
more  competent  boards  of  parole  and  more  adequate  super- 
vision of  prisoners  on  parole. 

What  shall  be  done  with  petty  misdemeanants  and  first 
oflfenders  for  whom  imprisonment  seems  unnecessary?  The 
answer  to  this  question  is  found  in  the  system  of  probation. 
By  this  term  is  meant  the  conditional  release  of  a  prisoner 
by  the  court,  and  commitment  to  the  care  of  a  probation  offi- 
cer before  imprisonment.  The  sentence  or  its  execution  is 
suspended  during  such  time  as  he  is  in  the  care  of  the  pro- 
bation officer,  but  if  he  does  not  demean  himself  well,  such 
officer  may  bring  him  before  the  court  to  be  sentenced.  As 
early  as  1869  Massachusetts  provided  for  a  form  of  proba- 
tion in  juvenile  cases,  and  in  1878  extended  the  system  to 
adult  offenders.  Her  law  on  the  subject  has  been  substan- 
tially copied  by  a  number  of  states.  It  provides  for  the  ap- 
pointment of  the  probation  officers  by  the  courts.  In  some 
states,  police  officers  are  selected  for  this  work,  but  their  suit- 
ability for  it  is  very  questionable.  In  Massachusetts  and  New 
York  there  are  state  probation  commissions,  which  exercise 
general  supervision  over  the  work  of  probation  officers,  whose 
appointment  should  probably  be  subject  to  the  approval  of 
such  commissions,  for  upon  the  character  of  the  probation 
officers  depends  to  a  considerable  extent  the  success  of  the 
system.    The  work  of  probation  and  parole  officers  is  similar 

370 


CHARITIES  AND  CORRECTIONS 

in  character,  and  there  is  no  good  reason  why  both  kinds  of 
work  should  not  be  performed  by  the  same  officers,  as  has 
been  authorized  by  law  in  New  York.  Both  classes  of  offi- 
cers should  be  under  the  effective  supervision  of  the  same 
central  state  authority,  which  should  in  turn  be  closely  con- 
nected with  the  general  state  department  of  charities  and  cor- 
rection.^^ 

The  indeterminate  sentence,  parole  and  probation  systems 
are  designed  to  prevent  the  increase  of  crime  by  bringing 
reformatory  influences  to  bear  upon  those  who  are  not  con- 
firmed criminals,  but  who  have  evinced  criminal  tendencies. 
They  are  in  line  with  the  most  advanced  thought  in  the 
science  of  criminology.  More  important  than  the  conserva- 
tion of  natural  resources  is  the  conservation  and  the  reclama- 
tion of  the  human  resources  of  the  states,  and  the  success  of 
charitable  and  correctional  administration  is  to  be  judged  by 
the  degree  of  success  with  which  these  ends  are  attained. 

REFERENCES  AND  COLLATERAL  READING 

General 

Annals  of  the  American  Academy  of  Political  and  Social  Science, 
May,  1903 ;  May,  1904. 

Bowman,  H.  M.  "The  Administration  of  Iowa,"  Columbia  Uni- 
versity Studies,  xviii.  No.  i,  Ch.  III. 

.  "The  Iowa  Board  of  Control,"  Publications  of  the  Michi- 
gan Political  Science  Assn.,  iv,  pp.  298-322. 

"  The  constitutionality  of  indeterminate  sentence,  parole,  and  proba- 
tion laws  has  been  attacked  on  various  grounds,  particularly  in  that 
they  encroach  upon  the  constitutional  power  of  the  governor  to  grant 
pardons,  reprieves,  and  commutations.  This  view,  however,  has  not 
generally  been  taken  by  the  courts.  See  George  vs.  People,  167  111., 
447 ;  Dreyer  vs.  Illinois,  187  U.  S.,  71 ;  Woods  vs.  State,  169  S.  W.,  558. 
The  unconstitutionality  of  the  Illinois  parole  law  is  avoided  by  making 
the  final  release  of  the  prisoner  dependent  upon  the  approval  of  the 
governor.  Cf.  Freund,  Police  Power,  p.  104,  and  see  People  vs. 
Nowasky,  254  111.,  146. 


AMERICAN  STATE  ADMINISTRATION 

Briggs,  J.  E.  "Social  Legislation  in  Iowa,"  Iowa  Applied  His- 
tory Series,  ii,  No.  9. 

Fairlie,  J.  A.  "Centralization  of  Administration  in  New  York 
State,"  Columbia  University  Studies,  ix,  No.  3,  Ch.  III. 

.     Local  Government  in  Counties,  Tozuns,  and  Villages,  Ch. 

xiii. 

Folks,  Homer.  "Charitable  and  Correctional  Institutions  and 
Public  Health,"  Proceedings  of  the  Academy  of  Political 
Science,  v,  pp.  434-447- 

Garner,  J.  W.  "Report  on  Charitable  and  Correctional  Insti- 
tutions," in  Report  of  Illinois  Efficiency  and  Economy  Com- 
mittee, 1914. 

Guild,  F.  H.  "Administration  and  Supervision  of  State  Charities 
and  Corrections,"  American  Political  Science  Review,  x,  pp. 

327-335- 
Magruder,    F.   a.     "Recent   Administration   in   Virginia,"   Johns 

Hopkins  Studies,  xxx.  No.  i,  Ch.  III. 

National  Conference  of  Charities  and  Correction,  Annual  Proceed- 
ings, 1874-date,  passim. 

Orth,  S.  p.  "Centralization  of  Administration  in  Ohio,"  Colum- 
bia University  Studies,  xvi.  No.  3,  Ch.  III. 

Rawles,  W.  a.  "Centralizing  Tendencies  in  the  Administration 
of  Indiana,"  Ibid.,  xvii.  No.  i,  Ch.  HI. 

Reports  and  Bulletins  of  State  Boards  and  Special  Investigating 
Commissions. 

Smith,  S.  G.  "The  Board  of  Control  in  Minnesota,"  American 
Journal  of  Sociology,  vi,  pp.  778-782;  xiv,  pp.  213-218. 

Sparling,  S.  E.  "State  Boards  of  Control,  with  Special  Refer- 
ence to  Wisconsin,"  Annals  of  the  Atnerican  Academy  of  Po- 
litical and  Social  Science,  xvii,  pp.  74-91. 

The  Survey  (Magazine),  passim. 

Whitten,  R.  H.  "Public  Administration  in  Massachusetts," 
Columbia  University  Studies,  viii,  No.  4,  Chs.  HI  and  IV. 

Charities 

Brackett,  J.  R.     Supervision  and  Education  in  Charity. 

Devine,  E.  T.     Principles  of  Relief. 

GiLLiN,  J.  L.     "Poor  Relief  Legislation  in  Iowa,"  Iowa  Applied 

History  Series,  ii.  No.  11. 
Henderson,  C.  R.     Modern  Methods  of  Charity. 

372 


CHARITIES  AND  CORRECTIONS 

Jenks,  J.  W.     Governmental  Action  for  Social  Welfare. 

Warner,  A.  G.     American  Charities. 

Wines,  F.  H.     "Report  of  the  General  Secretary,"  in  Eighteenth 

Annual  Report  of  the  State  Charities  Aid  Association  of  New 

Jersey,  1903. 
Young,  J.  T.     The  New  American  Government  and  Its  Work,  pp. 

433-439. 

Correction 

Annual  Reports  of  the  American  Prison   Association    (formerly 

the  National  Prison  Association),  1870-date,  passim. 
Henderson,  C.  R.  ed.     Correction  and  Prevention.     Russell  Sage 

Foundation,  4  vols. 
.     "Modern  Prison  Systems,"  U.  S.  House  of  Reps.  Doc.  No. 

452,  57th  Cong.,  2nd  Sess. 
"Interstate  Commerce  in  Convict-Made  Goods,"  U.  S.  Senate  Doc. 

No.  446,  63rd  Cong.,  2nd  Sess. 
"Prison  Labor,"  Annals  of  the  American  Academy  of  Political  and 

Social  Science,  March,  191 3. 
Report  of  the  Proceedings  of  the  Eighth  International  Prison  Con- 
gress, U.  S.  House  of  Reps.,  Doc.  No.  52,  63rd  Cong.,  ist  Sess. 
Snively,    E.    a.     "The    Parole    Law    of    Illinois,"    reprinted    in 

Reinsch,  p.  S.,  Readings  in  American  State  Government,  pp. 

207-217. 
"The   State's   Delinquents,"    Transactions  of   the   Commonwealth 

Club  of  California,  x.  No.  2. 
Whitin,  E.  S.     "Prison  Labor,"  Proceedings  of  the  Academy  of 

Political  Science,  ii,  pp.  633-637. 
Wines,  F.  H.    Punishment  and  Reformation, 


CHAPTER  XIV 
PUBLIC  HEALTH  ADMINISTRATION^ 

Measures  for  the  protection  of  the  public  health  in  this 
country  were  at  first  taken  primarily  for  the  purpose  of  pre- 
venting the  introduction  of  disease  from  foreign  countries 
and  took  the  form  of  the  establishment  of  quarantine  against 
vessels  hailing  from  ports  at  which  contagious  diseases  were 
prevalent.  On  this  account,  public  health  administration  in 
this  country  developed  first  in  those  states  having  important 
seaports,  such  as  Massachusetts,  New  York,  Pennsylvania, 
Alaryland  and  Louisiana.  Such  measures  as  were  taken  at 
the  earliest  times  were  in  the  hands  of  the  regularly  consti- 
tuted authorities  at  the  several  ports  of  entry  acting  under  the 
general  governmental  power,  and  not  in  those  of  officers  spe- 
cially created  for  the  purpose. 

Such  early  attempts  at  the  establishment  of  quarantine, 
however,  were  evidently  ineffective,  as  numerous  epidemics 
of  various  communicable  diseases  periodically  visited  the 
principal  seaports  and  spread  into  the  interior.  Some  of 
these  epidemics  doubtless  originated  as  well  from  conditions 
in  the  cities  favorable  to  the  propagation  of  diseases,  and 
others  were  increased  in  virulence  thereby. 

The  growth  of  the  leading  cities  on  the  Atlantic  coast  in 
size  and  density  of  population  increased  both  the  danger  of 
disease  and  the  importance  of  public  health  measures.  The 
need  of  special  machinery  for  combating  disease  in  the  sea- 

'  This  chapter  is  a  reprint  of  a  portion  of  the  author's  report  on 
"Public  Health  Administration,"  contributed  to  the  Report  of  the 
Efficiency  and  Economy  Committee  of  Illinois,  pp.  670-687. 

3/4 


PUBLIC  HEALTH  ADMINISTRATION 

coast  cities  was  apparent.  This  machinery  was  at  first  for 
the  most  part  purely  local  in  character,  and  all  over  the  coun- 
try, the  establishment  of  local  health  authorities  has,  as  a 
general  rule,  preceded  the  organization  of  state  health  author- 
ities. Local  health  authorities  were  organized  in  Baltimore 
and  Philadelphia  in  1793  and  1794,  respectively,  and  before 
the  end  of  the  eighteenth  century  New  York  City  and  Boston 
were  similarly  supplied. 

Among  the  states,  Massachusetts  led  the  way  by  making 
provision,  as  early  as  1787,  for  a  state-wide  system  of  town 
boards  of  health,  followed  by  Connecticut  in  1805.  To  such 
an  extent  was  health  administration  considered  a  purely  local 
function,  that  it  was  not  until  after  the  middle  of  the  nine- 
teenth century  that  a  state  administrative  body  was  estab- 
lished. The  first  state  board  of  health  was  established  in 
Louisiana  in  1865.  This  board  was  at  first,  however,  merely 
a  body  for  the  enforcement  of  quarantine  regulations  at  the 
port  of  New  Orleans. 

Already,  in  1849,  a  commission  had  been  appointed  in  Mas- 
sachusetts to  report  to  the  legislature  a  plan  for  a  sanitary 
survey  of  the  state.  Among  other  important  and  far-sighted 
recommendations  of  this  commission  was  one  for  the  creation 
of  a  state  board  of  health,  charged  with  the  duty  of  enforc- 
ing the  public  health  laws  of  the  state.  The  recommendations 
of  the  commission  finally  bore  fruit  in  1869  when  the  first 
state  body  was  established  in  Massachusetts  having  functions 
similar  to  modern  boards  of  health. 

The  movement  towards  the  establishment  of  state  boards 
of  health  has  been  general  and  continuous,  so  that,  at  the 
present  time,  such  boards  are  found  in  all  the  states  and  in 
the  more  important  insular  possessions.  In  California,  Dela- 
ware, Florida,  Louisiana,  Oklahoma  and  Washington,  the 
legislature  is  required  by  the  State  Constitution  to  establish 
a  state  board  of  health  and  in  Texas  that  body  is  authorized 
to  do  so.     The  Constitution  of  Oklahoma  requires  the  estab- 

375 


AMERICAN  STATE  ADMINISTRATION 

lishment  not  only  of  a  state  board  of  health,  but  also  of  a 
board  of  dentistry,  board  of  pharmacy  and  a  pure  food  com- 
mission. In  the  other  states  the  authority  for  the  establish- 
ment of  state  boards  of  health  rests  upon  legislative  enact- 
ment,  without   specific   constitutional   authorization. 

Org^anization  of  State  Health  Authorities. — The  principal 
central  authority  entrusted  in  each  state  with  the  administra- 
tion of  the  public  health  laws  is  that  known  usually  as  the 
state  board  of  health,  but  occasionally  as  the  state  board  of 
health  and  vital  statistics,  or  the  state  board  of  health  and 
medical  examiners.  In  addition  to  this  board,  there  are  also 
in  many  states  other  central  boards  charged,  not  with  general 
supervision  over  matters  relating  to  the  public  health,  but 
with  a  certain  special  function  or  functions  more  or  less 
closely  connected  therewith.  One  class  of  these  special  cen- 
tral boards  have  direct  supervision  over  some  particular  mat- 
ter connected  with  the  public  health,  such  as  pollution  of 
water  supplies,  sewage  disposal,  and  food  and  drug  inspec- 
tion. Their  functions  tend  to  approach  in  character  those 
performed  by  bodies  having  primarily  to  do  with  public 
safety  or  public  works.  In  Illinois,  for  example,  there  is  a 
state  water  survey  and  a  state  food  commissioner  and  food 
standard  commission,  which  are  not  under  the  control  of  the 
state  board  of  health,  but  to  which  are  assigned  special  func- 
tions relating  more  or  less  closely  to  the  public  health. 

The  second  class  of  these  special  central  boards  is  that 
composed  of  bodies  charged  with  the  functions  of  examining 
candidates  for  entrance  into  particular  professions.  Among 
such  boards  may  be  mentioned  those  intrusted  with  the 
examination  and  admission  of  qualified  persons  to  practice  as 
physicians,  dentists,  pharmacists,  nurses,  barbers,  midwives, 
embalmers,  opticians,  chiropodists  and  osteopaths.  It  should 
be  noted,  however,  that  in  a  number  of  states  the  function  of 
examining  and  licensing  some  of  these  practitioners  is  in  the 
hands   of  the  state  board   of  health.     Occasionally  we  find 

376 


PUBLIC  HEALTH  ADMINISTRATION 

that  these  special  central  boards  are  subject  to  a  measure  of 
control  by  the  state  board  of  health,  as,  for  example,  the  regu- 
lations of  the  state  board  of  barber  examiners  in  Illinois  must 
be  approved  by  the  state  board  of  health  before  going  into 
effect.  As  a  general  rule,  however,  these  boards  are  entirely 
separate  and  independent  bodies. 

Working  in  conjunction  with  the  state  board  of  health  we 
find  also  an  executive  officer,  variously  known  as  the  state 
health  commissioner,  superintendent  of  health,  or  secretary 
of  the  state  board  of  health.  He  may  or  may  not  be  a  mem- 
ber of  the  board.  If  a  member,  which  is  usually  the  case,  he 
is  apt  to  be  either  secretary  or  the  presiding  officer  of  the 
board,  though  this  is  not  always  true.  His  power  varies  from 
almost  absolute  control  over  the  public  health  activities  of  the 
state  to  that  of  a  mere  clerical  officer,  exercising  almost  no 
discretionary  authority. 

State  Boards  of  Health. — The  number  of  members  of  the 
state  boards  of  health  varies  from  one  in  Oklahoma  ^  to  thir- 
teen in  Mississippi.  The  average  number  is  about  seven.  In 
the  large  majority  of  states,  they  are  appointed  by  the  gover- 
nor, usually  with  the  consent  of  the  senate.  In  a  number  of 
states,  however,  a  portion  of  the  members  serve  on  the  board 
by  virtue  of  incumbency  in  other  offices,  such  as  the  governor 
himself,  the  attorney-general  and  the  state  veterinarian. 

With  respect  to  some  or  all  of  those  members  who  do  not 
serve  upon  the  board  ex  officio,  most  of  the  states  require 
qualifications  of  various  kinds.  The  most  frequent  require- 
ment is  that  the  board  shall  be  composed  in  part  or  wholly  of 
physicians.  In  about  fifteen  states  an  attempt  to  secure  local 
representation  is  made  by  requiring  the  geographical  appor- 
tionment of  the  members  among  districts,  counties,  or  sec- 
tions of  the  state.     In  about  a  dozen  states  it  is  either  cus- 

'  Although  the  Constitution  of  Oklahoma  required  the  creation  of  a 
state  "board"'  of  health,  the  legislature  provided  for  the  establishment 
of  a  state  "department"  of  health  in  charge  of  one  commissioner. 

377 


AMERICAN  STATE  ADMINISTRATION 

tomary  or  required  by  law  that  an  engineer  shall  be  appointed 
on  the  board. 

A  more  recent  tendency  is  toward  the  requirement  that  the 
membership  of  the  board  shall  include  one  or  more  sani- 
tarians. The  increased  attention  being  given  to  means  of  pre- 
venting disease  is  an  assistance  in  accelerating  this  tendency. 
The  New  York  Act  of  19 13  requires,  for  example,  that  the 
public  health  council  shall  consist,  besides  the  commissioner 
of  health,  of  six  members,  "of  whom  at  least  three  shall  be 
physicians  who  shall  have  had  training  or  experience  in  sani- 
tary science,  and  one  shall  be  a  sanitary  engineer." 

The  terms  of  the  members  of  state  boards  of  health  vary 
from  two  to  seven  years,  the  average  being  about  four  years. 
The  members,  other  than  the  executive  officer,  are  not  ex- 
pected to  devote  their  whole  time  to  the  work,  and  are  not 
usually,  therefore,  paid  a  salary.  However,  they  are  gener- 
ally allowed  a  per  diem  and  expenses  for  actual  work. 

The  Executive  Officer. — The  executive  officer,  who  is  usually 
the  secretary  of  the  state  board  of  health,  is,  in  the  majority 
of  the  states,  appointed  by  the  board  itself.  In  others  he  is 
appointed  by  the  governor,  with  the  consent  of  the  senate. 
He  serves  for  a  definite  term  Tn  about  half  the  states.  This 
varies  from  one  to  six  years.  In  the  others,  he  serves  for 
an  indefinite  term,  which  may  be  during  good  behavior,  or 
during  the  pleasure  of  the  board. 

The  salaries  received  by  the  executive  officer  vary  from 
$200  per  annum  in  Wyoming  to  $10,000  per  annum  in  Penn- 
sylvania. In  the  states  where  small  salaries  are  paid,  he,  of 
course,  is  not  expected  to  devote  his  entire  time  to  his  official 
duties.  In  only  three  states,  however,  California,  Indiana  and 
North  Carolina,  is  he  required  by  law  to  give  all  his  time  to 
the  duties  of  his  office,  and  in  New  York  he  is  forbidden  to 
engage  in  any  occupation  which  would  conflict  with  the  per- 
formance of  his  official  duties. 

In  all  but  nine  states,  qualifications  of  some  sort  are  re- 

378 


PUBLIC  HEALTH  ADMINISTRATION 

quired  of  the  executive  officer.  In  many  states,  the  executive 
officer  is  himself  a  member  of  the  state  board  of  health,  in 
which  case  he  is,  of  course,  subject  to  the  same  requirements 
of  qualifications  which  rest  upon  the  other  members  of  the 
board,  but  usually  additional  qualifications  are  required  of 
him.  The  most  frequent  qualification  found  is  that  he  shall 
be  a  physician.  In  a  number  of  states  this  qualification  is 
amplified  into  the  requirement  that  he  shall  be  an  experi- 
enced physician. 

The  states  which  are  furthest  advanced  in  public  health 
matters,  however,  are  not  content  merely  with  the  require- 
ment that  the  executive  officer  shall  be  versed  in  medical  sci- 
ence. The  New  York  law,  for  example,  provides  that  he 
shall  be  "a  physician,  a  graduate  of  an  incorporated  medical 
college,  of  at  least  ten  years'  experience  in  the  actual  practice 
of  his  profession,  and  of  skill  and  experience  in  public  health 
duties  and  sanitary  science." 

The  question  of  the  relation  between  the  executive  officer 
and  the  state  board  of  health,  and  the  amount  and  kind  of 
power  entrusted  to  each,  is  an  important  one.  In  general,  the 
working  and  action  of  the  state  department  of  health  is  apt 
to  be  less  efficient  in  proportion  to  the  extent  to  which  the 
executive  officer  is  subject  to  the  control  of  the  board  in  the 
performance  of  executive  duties.  The  executive  officer  is 
more  in  touch  with  public  health  matters  than  the  board,  and 
has  less  difficulty  in  making  up  his  mind  in  the  face  of  an 
emergency  as  to  what  action  should  be  taken,  and  is  therefore 
able  to  take  action  more  promptly  than  the  board  would,  or 
than  he  himself  would  if  subject  to  the  control  of  the  board. 
For  these  reasons  the  executive  officer  should  be  entrusted 
with  entire  control  of  executive  matters  connected  with  public 
health  administration  by  the  state  department,  subject  only  to 
the  possibility  of  removal  from  office  by  the  board  for  good 
and  sufficient  cause. 

On  the  other  hand,  in  the  drawing  up  of  sanitary  regula- 

379 


AMERICAN  STATE  ADMINISTRATION 

tions  and  the  adoption  of  general  rules,  which  is  in  reality  a 
legislative  function,  the  participation,  if  not  control  of  the 
board,  is  desirable.  In  such  matters  several  heads  are  gener- 
ally better  than  one.  Even  in  such  matters,  however,  it  might 
be  better  to  confine  the  board  to  advice  and  counsel,  leaving 
the  final  decision  to  the  executive  officer.  The  moral  support 
and  aid  through  advice  and  encouragement  which  an  able  and 
progressive  but  not  meddlesome  or  overbearing  board  may 
give  to  the  executive  officer  cannot  wisely  be  dispensed  with. 
But  the  actual  management  and  direction  of  public  health  ad- 
ministration in  the  state  should  be  largely  in  the  hands  of  the 
executive  officer. 

Actual  conditions  in  the  various  states  do  not  correspond, 
however,  exactly  to  what  may  seem  to  be  theoretically  desir- 
able. In  many  states  the  board  is  possessed  of  powers  which 
it  is  not  as  well  qualified  to  exercise  as  the  executive  officer; 
and  in  most  states  the  board  undertakes  to  exercise  too  great 
a  supervisory  power  over  the  executive  officer.  The  tendency, 
however,  in  the  more  advanced  states,  is  undoubtedly  in  the 
direction  of  the  increase  of  the  power  and  influence  of  the 
executive  officer. 

In  Oklahoma,  as  has  been  noted,  the  so-called  state  board 
of  health  consists  in  reality  merely  of  a  single  commissioner. 
In  New  York,  also,  the  board  was  so  far  eclipsed  by  the  ex- 
ecutive officer  that,  from  1901  to  1913,  the  former  was  dis- 
pensed with  entirely.  It  is  true,  a  public  health  council  has 
now  been  established  in  that  state,  but  its  duties  are  confined 
mainly  to  advice  and  the  enactment  of  a  sanitary  code  for 
the  state.  It  is  expressly  forbidden  to  perform  any  "execu- 
tive, administrative,  or  appointive  duties."  In  Pennsylvania, 
also,  in  1903,  legislation  was  passed  which  had  the  effect  of 
centralizing  authority  in  the  hands  of  the  executive  officer. 
A  board  was  retained,  but  it  is  almost  wholly  advisory  in 
character. 

In  this  connection,  it  should  be  mentioned  further  that  in 

380 


PUBLIC  HEALTH  ADMINISTRATION 

those  states  where  the  executive  officer  is  also  a  member  of 
the  board  and  where  the  other  members  of  the  board  are 
wholly  or  partly  ex  officio  in  character,  the  tendency  in  such 
states  is  to  centralize  power  in  the  hands  of  the  executive 
officer. 

Other  Officers  and  Employees. — Below  the  executive  officer 
there  are  a  number  of  other  officials  employed  at  the  central 
office  of  the  state  department  of  health.  In  addition  to  the 
necessary  clerical  force  and  office  assistants,  many  states  em- 
ploy also  a  number  of  experts  to  attend  to  special  phases  of 
public  health  work.  Among  such  experts  are  sanitary  engi- 
neers to  supervise  the  construction  of  public  works  designed 
to  promote  the  public  health,  chemists  to  analyze  samples  of 
water,  food  and  drugs,  and  bacteriologists  for  work  in  hy- 
gienic laboratories.  Provision  is  also  made  in  a  number  of 
states,  including  Illinois,  Maryland,  Louisiana  and  California, 
for  the  employment  of  special  attorneys,  whose  business  it  is 
to  furnish  the  state  board  advice  as  to  legal  matters,  file  com- 
plaints with  the  state's  attorneys,  and  assist  in  prosecuting 
offenders  against  the  public  health  laws.  In  the  majority  of 
states,  however,  no  special  attorneys  are  employed,  but  the 
attorney-general  is  depended  upon  to  perform  these  functions, 
and  in  those  states  where  special  attorneys  are  employed,  the 
appropriations  are  sometimes  insufficient  to  secure  an  ade- 
quate amount  of  legal  services. 

The  executive  officer  and  the  other  employees  attached  to 
the  central  office  do  not  constitute  the  whole  personnel  of  the 
state  department  of  health.  The  department  must  further  be 
supplied  with  antennae  which  reach  into  every  corner  of  the 
state  in  order  that  it  may  adequately  safeguard  the  health  of 
the  people  of  the  whole  state.  With  the  object  of  maintain- 
ing an  efficient  field  force  in  all  parts  of  the  state,  a  number 
of  the  more  advanced  states  have  been  divided  into  sanitary 
districts,  with  a  state  inspector  in  charge  of  state  public  health 
work  in  each  district. 


AMERICAN  STATE  ADMINISTRATION 

In  New  York  the  commissioner  of  health  is  required  to 
divide  the  whole  state,  except  cities  of  the  first  class,  into 
twenty  or  more  sanitary  districts,  and  to  appoint  for  each 
district  a  sanitary  supervisor,  who  must  be  a  physician.  In 
Pennsylvania  the  state  health  commissioner  divides  the  state 
into  ten  districts  and  appoints  a  health  officer  for  each  dis- 
trict at  an  annual  salary  of  $2,500.  Massachusetts  is  divided 
into  a  number  of  health  districts  which  may  be,  in  the  discre- 
tion of  the  state  board  of  health,  as  high  as  fifteen.  In  each 
district  the  state  board  appoints,  with  the  consent  of  the  gov- 
ernor and  council,  a  state  inspector  of  health,  who  must  be 
"a  practical  and  discreet  person,  learned  in  the  science  of 
medicine  and  hygiene."  Though  appointed  for  five-year  terms, 
the  state  inspectors  are  liable  to  removal  from  office  at  any 
time  by  the  state  board.  The  inspectors  perform  important 
functions  in  enforcing  public  health  laws  regarding  the 
abatement  of  nuisances,  the  sanitation  of  tenement  houses 
etc.,  and  iti  acting  as  intermediaries  between  the  state  board 
of  health  and  the  local  health  authorities. 

From  1907  to  1912  the  Massachusetts  inspectors  also  per- 
formed important  functions  in  safeguarding  the  health  of 
employees  in  industrial  establishments ;  but,  by  an  act  of 
1912,  these  functions  were  transferred  to  the  newly  created 
state  board  of  labor  and  industries.  In  New  York  the  state 
health  commissioner  is  authorized  to  employ  public  health 
nurses  and  assign  them  from  time  to  time  to  the  sanitary 
districts  to  aid  in  the  control  of  communicable  diseases. 
Many  other  states  also  have  a  number  of  inspectors  in  the 
field,  assigned  to  special  work  in  any  part  of  the  state  where 
they  may  be  needed.  Usually,  however,  appropriations  are 
insufficient  to  maintain  an  adequate  field  force. 

Divisions  and  Bureaus. — The  tendency  is  towards  a  more 
elaborate  interior  organization  of  the  state  department  of 
health.  Recent  advances  in  preventive  medicine  are  opening 
up  new  lines  of  public  health  work.    This  fact,  combined  with 

382 


PUBLIC  HEALTH  ADMINISTRATION 

increased  appropriations,  greater  general  interest  in  public 
health  matters  and  the  growing  need  for  greater  state  control 
over  such  matters,  has  led  to  an  extension  of  the  work  of  the 
state  department  into  new  fields,  and  the  resulting  necessity 
of  organizing  the  work  into  divisions  and  bureaus. 

For  example,  the  Pennsylvania  state  department  is  organ- 
ized into  a  bureau  of  vital  statistics,  and  divisions  of  sani- 
tary engineering,  laboratories,  biological  products,  tubercu- 
losis sanatoria  and  dispensaries.  In  addition,  there  are  divi- 
sions for  the  distribution  of  supplies,  and  for  purchasing, 
auditing  and  accounting.  Each  of  these  divisions  is  in  charge 
of  a  chief,  and  some  of  them  are  still  further  subdivided. 
Likewise,  in  Maryland,  there  are  the  following  bureaus : 
communicable  diseases,  vital  statistics,  sanitary  engineering, 
bacteriology,  and  chemistry,  and  a  division  of  food  and 
drugs. 

The  administration  of  public  health  in  New  York  was  reor- 
ganized as  a  result  of  the  report  of  Governor  Sulzer's  com- 
mission on  the  subject,  appointed  early  in  1913,  and  a  new 
comprehensive  law  on  the  subject  was  enacted  as  a  result  of 
the  report  of  the  commission,  which  went  into  effect  on  Jan- 
uary I,   19 14. 

A  public  health  council  is  created,  consisting  of  the  com- 
missioner of  health  and  six  members  appointed  by  the  gov- 
ernor, of  whom  at  least  three  shall  be  physicians  and  one  a 
sanitary  expert.  The  council  has  no  executive,  administra- 
tive, or  appointive  powers  but  may  enact  and  from  time  to 
time  amend  a  sanitary  code  to  apply  to  the  whole  state,  with 
the  exception  of  New  York  City.  The  department  of  health 
is  divided  into  ten  divisions  or  bureaus.  These  bureaus  are : 
(i)  administration,  (2)  sanitary  engineering,  (3)  laborato- 
ries and  research,  (4)  communicable  diseases,  (5)  vital  sta- 
tistics, (6)  publicity,  (7)  education,  (8)  child  hygiene,  (9) 
public  health  nursing,  and  (10)  tuberculosis.  Each  division 
is  under  the  management  of  a  director  appointed  by  the  state 

2^3 


AMERICAN  STATE  ADMINISTRATION 

commissioner.  The  commissioner  may  also  create  other  divi- 
sions from  time  to  time. 

The  commissioner  of  health  is  charged  with  the  enforce- 
ment of  the  public  health  law  and  the  sanitary  code,  and  ex- 
ercises general  supervision  over  local  health  authorities.  He 
is  further  authorized  to  divide  the  state  from  time  to  time 
into  twenty  or  more  sanitary  districts,  and  to  appoint  for 
each  district  a  sanitary  inspector  or  supervisor,  who  must  be 
a  physician.  These  sanitary  supervisors  are  charged  with  the 
duties  of  conducting  annual  sanitary  surveys  of  their  dis- 
tricts, organizing  district  conferences  of  health  officers,  ad- 
justing questions  of  jurisdiction  arising  between  local  health 
officers,  studying  causes  of  excessive  mortality  from  any 
disease,  promoting  the  registration  of  births  and  deaths,  and 
enforcing  the  sanitary  code. 

The  commissioner  of  health  is  given  authority  to  employ 
public  health  nurses  and  to  assign  them  from  time  to  time  to 
sanitary  districts  to  assist  the  district  supervisors  and  local 
health  officers  in  the  control  of  communicable  diseases.  He 
is  also  directed  to  submit  to  city  authorities  recommenda- 
tions for  the  establishment  of  hospitals  for  contagious 
diseases,  and  to  inspect  all  such  hospitals.  If  any  town  board 
or  village  board  of  trustees  fails  to  appoint  a  health  officer, 
the  state  commissioner  of  health  may  exercise  the  powers  of 
a  health  officer  in  that  locality,  the  expense  incurred  by  the 
commissioner  being  a  charge  upon  the  locality.  The  commis- 
sioner is  further  given  power  to  investigate  the  enforcement 
of  the  tenement  house  law  in  all  cities  of  the  state. 

POWERS  AND  DUTIES 

Methods  of  Classification. — The  powers  and  duties  of  state 
boards  of  health  may  be  classified  in  different  ways,  accord- 
ing to  several  different  standards  of  classification.  In  the 
first  place,  they  may  be  classified  as  indirect  or  supervisory 
and  direct.    Until  the  middle  of  the  nineteenth  century,  public 

384 


PUBLIC  HEALTH  ADMINISTRATION 

health  administration  was  largely  decentralized.  All  meas- 
ures connected  with  public  health  administration  were  car- 
ried out  by  local  authorities,  either  general  or  special,  and 
at  present  many  important  powers  and  duties  of  this  char- 
acter are  still  in  the  hands  of  the  local  authorities.  The 
gradual  increase  in  the  powers  of  the  state  boards  has  been 
brought  about  in  part  by  the  supervision  of  the  state  boards 
over  the  performance  by  local  authorities  of  the  duties  im- 
posed upon  them.  Thus  with  regard  to  the  abatement  of 
nuisances  of  a  local  character,  the  local  authorities  are  usu- 
ally competent  to  act,  subject  to  the  supervision  of  the  state 
board.  Indirect  administration  by  the  state  board  may,  how- 
ever, develop  into  direct,  as  where,  if  the  local  authority  fails 
to  act  or  performs  its  duties  in  a  negligent  manner,  the  state 
board  may  step  in  and  carry  out  directly  measures  for  the 
promotion  of  the  public  health.  On  the  other  hand,  where 
the  function  is  one  which  local  authorities  are  not  competent 
to  perform,  the  state  board  may  act  directly  in  the  first  place, 
without  waiting   for  local   action. 

Another  classification  of  the  powers  and  duties  of  state 
boards  of  health  may  be  made  in  accordance  with  the  method 
or  character  of  the  action  taken  into  legislative,  judicial  and 
executive  or  administrative.  Of  these  three  classes  of  powers, 
the  first  and  second  are  more  generally  lodged  in  the  board 
itself,  while  the  third  is  usually  placed  in  the  hands  of  the 
executive  officer  of  the  board.  The  legislative  power  con- 
sists in  the  adoption  of  sanitary  regulations.  Such  regula- 
tions must  not,  of  course,  be  in  conflict  with  the  Constitution 
or  statutes.  Even  where  there  is  no  conflict,  the  exercise 
of  this  power  by  administrative  bodies  has  sometimes  been 
declared  unconstitutional  by  the  courts  on  the  grounds  that 
it  is  a  delegation  of  legislative  power  and  violates  the  prin- 
ciple of  separation  of  powers.  These  decisions,  however, 
have  not  seemingly  checked  the  practice  of  legislatures  to 
confer  such  powers  upon  boards  of  health.     In  some  states 

385 


AMERICAN  STATE  ADMINISTRATION 

practically  all  public  health  regulations  are  issued  by  the 
boards,  but  there  is  apparently  a  tendency  toward  the  em- 
bodiment in  statutes  of  most  of  the  regulations  issued  by  the 
boards.  Tlie  power  of  issuing  regulations,  where  it  exists, 
may  be  either  special  or  general,  that  is,  they  may  relate  to 
certain  special  matters,  such  as  quarantine  or  the  protection 
of  water  supplies,  or  they  may  relate  to  the  general  pro- 
tection of  the  public  health.  The  public  health  council  of 
New  York  State,  for  example,  is  empowered,  "by  the  af- 
firmative vote  of  a  majority  of  its  members  to  establish  and 
from  time  to  time  amend  a  sanitary  code."  This  code  "may 
deal  with  any  matter  affecting  the  security  of  life  or  health 
or  the  preservation  and  improvement  of  public  health  in  the 
State  of  New  York." 

Powers  somewhat  analogous  to  those  exercised  by  the  regu- 
lar courts  also  sometimes  devolve  upon  state  boards.  The  de- 
termination as  to  whether  particular  conditions  constitute  a 
prohibited  menace  to  the  public  health,  or  the  interpretation 
of  a  given  provision  of  the  sanitary  code  are  matters  which 
may  come  for  settlement  either  before  the  state  board  or  its 
executive  officer.  In  arriving  at  a  decision  in  such  mat- 
ters the  board  may  issue  warrants  of  arrest,  summon  wit- 
nesses, take  testimony  under  oath,  and  perform  other  ju- 
dicial functions.  The  New  York  Act  provides  that  the  "ac- 
tions, proceedings  and  authority  of  the  state  health  department 
in  enforcing  the  provisions  of  the  public  health  law  and  sani- 
tary code,  applying  them  to  specific  cases,  shall  at  all  times 
be  regarded  as  in  their  nature  judicial,  and  shall  be  treated 
as  prima  facie  just  and  legal." 

The  bulk  of  the  powers  of  state  departments  of  health 
are,  however,  of  an  executive  or  administrative  character. 
They  may  be  called  the  residuary  powers,  including  all  powers 
that  cannot  be  classed  as  either  legislative  or  judicial.  They 
embrace  most  of  the  important  special  measures  taken  for 
the  promotion  of  the  public  health,   such  as  the  establish- 

386 


PUBLIC  HEALTH  ADMINISTRATION 

ment  of  quarantine,  the  abatement  of  nuisances  and  the  in- 
spection of  public  buildings  and  other  places  liable  to  breed 
disease, 

A  third  method  of  classifying  the  powers  and  duties  of 
state  health  departments  may  be  made  in  accordance  with  the 
nature  of  the  power  exercised  or  the  character  of  the  ob- 
jects affected  by  such  exercise  rather  than  with  the  method 
of  its  exercise.  From  this  standpoint,  the  powers  and  duties 
of  the  state  health  authorities  may  be  classed  as  relating 
to:  (i)  the  collection  and  dissemination  of  information  on 
public  health  matters,  (2)  the  examination  and  licensing  of 
certain  classes  of  practitioners,  and  (3)  taking  measures  di- 
rectly for  the  prevention  or  eradication  of  disease. 

Information  and  Research.. — The  collection  and  dissemina- 
tion of  information  was  originally  the  primary  and  almost 
sole  function  for  which  state  boards  of  health  were  estab- 
lished. In  order  that  the  information  given  out  might  be 
as  authentic  and  accurate  as  possible,  it  was  necessary  that 
vital  statistics  should  be  collected  and  that  various  works 
of  investigation  and  research  should  be  carried  on. 

The  object  of  collecting  vital  statistics  has  been  described 
as  being  "to  give  warning  of  the  undue  increase  of  disease 
or  death  that  is  presumed  to  be  due  to  preventable  cause, 
and  also  to  indicate  the  localities  in  which  sanitary  effort 
is  most  desirable  and  most  likely  to  be  of  use."  This  object 
cannot  be  attained  without  full  and  accurate  statistics,  uni- 
form with  respect  to  different  localities,  and  running  con- 
tinuously over  a  considerable  period  of  time.  In  order  that 
such  statistics  may  be  even  approximately  obtained,  the  efforts 
of  local  authorities  have  proved  almost  invariably  ineffec- 
tive, and  state  action  is  therefore  necessary.  In  some  respects 
even  national  control  seems  preferable.  In  view  of  the  in- 
effectiveness of  local  action,  practically  all  the  states  have 
established  some  degree  of  central  control.  This  has  taken 
two  main  forms.    The  earlier  and  more  usual  form  has  been 

387 


AMERICAN  STATE  ADMINISTRATION 

the  collection  of  such  statistics  through  the  cooperation  of 
state  with  local  officials.  The  executive  officer  of  the  state 
board  is  usually  designated  state  registrar  of  vital  statistics, 
though  sometimes  a  special  state  officer  is  appointed  for  that 
purpose,  while  the  local  health  officers  are  ex  officio  local 
registrars  of  vital  statistics.  Physicians,  midwives,  and  un- 
dertakers are  required  to  report  cases  to  the  local  registrars, 
who  transmit  them  to  the  state  registrar.  In  order  to  secure 
uniformity,  the  forms  upon  which  reports  are  to  be  made 
are  usually  prescribed  by  the  state  board.  Local  registrars 
who  neglect  properly  to  perform  their  duties  are  sometimes, 
as  in  Maryland,  subject  to  removal  by  the  state  registrar. 
The  second  form  of  control  by  the  state  over  the  collection 
of  vital  statistics  is  more  centralized.  In  this  form,  which 
may  be  found  in  Pennsylvania,  the  services  of  locally  se- 
lected officers  are  dispensed  with,  and  the  so-called  local  reg- 
istrars are  appointed  by  the  central  authority.  Centralized 
control  has  undoubtedly  had  the  effect  of  increasing  the  full- 
ness, accuracy  and  uniformity  of  the  vital  statistics  collected, 
but  the  tendency  has  not  yet  gone  far  enough,  so  that  as  yet 
many  states  are  not  included  in  the  registration  area  of 
the  United   States   Census   Bureau. 

Another  important  class  of  information  collected  is  that 
regarding  the  causes  of  diseases  and  the  means  of  their  pre- 
vention. For  this  purpose,  various  states  have  established 
chemical  and  bacteriological  laboratories.  The  work  of  the 
Massachusetts  State  Board  along  these  lines  has  been  espe- 
cially noteworthy.  Laboratories  are  also  established  for  the 
preparation  for  free  distribution  of  diphtheria  antitoxin, 
smallpox  and  anti-typhoid  vaccine  and  other  prophylactic 
agents. 

Since  the  successful  application  of  sanitary  measures  de- 
pends in  large  degree  upon  the  cooperation  of  the  mass  of 
the  people,  the  education  of  the  people  in  health  matters 
should  be  one  of  the  essential  objects  of  the  activity  of  state 

3S8 


PUBLIC  HEALTH  ADMINISTRATION 

boards  of  health.     The  importance  of  this  was  recognized  in 
New  York,   as  has  been   seen,  through   the  creation  in  the 
state  department  of  health  of  a  special  division  of  publicity 
and  education.     In  only  a  few  states  are  the  appropriations 
sufficiently  large  to  enable  the  state  department  of  health  to 
reach  the  people  in  an  adequate  manner.    In  most  states,  how- 
ever, the  amount  of  money  spent  on  publications  might  be 
used   to  better   advantage   than   at  present.     In  addition   to 
the  annual  or  biennial  reports  to  the  governor  or  legislature, 
many    state    departments    of    health    also   issue   bulletins   at 
stated  intervals,  which  are  distributed  among  local  health  of- 
ficers, physicians,  and  others  who  may  apply  for  them.     Too 
frequently  they  are   composed    for   the  most  part   of   undi- 
gested statistics,  which  even  health  officers  cannot  find  very 
serviceable.     They  fail  utterly  in  even  reaching  the  general 
public.     Some  of  the  more  advanced  states,  however,  have 
begun   to   issue   bulletins   of   a  popular  character  and   have 
endeavored  to  distribute  them  among  the  people  as  widely  as 
the  funds  at  their  disposal  may  permit.    The  difficulty  is  that 
the  very  people  who  are  most  in  need  of  the  information 
contained  in  such  bulletins  are  the  hardest  to  reach  and  the 
least  likely  to  avail  themselves   voluntarily  of  these  means 
of   education.     In   order  to   meet  this   difficulty,  beginnings 
have  been   made   in    some    states   towards    educating   school 
children  in  public  health  matters  by  definite  instruction  and 
placing  suitable  literature  in  their  hands.     Older  persons  as 
well  are  being  reached  by  public  health  exhibits  and  wide- 
spread newspaper  campaigns. 

Examining  and  Licensing  Functions. — The  second  division 
of  powers  and  duties  of  state  boards  of  health  is  that  con- 
nected with  the  examination  and  licensing  of  various  classes 
of  practitioners.  Among  such  practitioners  whose  work  has 
more  or  less  to  do  with  the  public  health  are  physicians, 
osteopaths,  dentists,  optometrists,  pharmacists,  nurses,  em- 
balmers,  barbers,  midwives,  and  plumbers.     In  some  states 

389 


AMERICAN  STATE  ADMINISTRATION 

the  examination  and  licensing  of  these  practitioners  are  in- 
trusted entirely  to  special  state  examining  boards  which  are 
usually  quite  separate  and  distinct  from  the  state  board  of 
health.  These  special  boards  are  in  New  York  appointed 
by  the  state  board  of  regents  but  in  other  states  are  usually 
appointed  by  the  governor  and  senate.  The  state  board  of 
health  is  in  a  number  of  states  charged  with  the  examina- 
tion and  admission  of  persons  to  some  professions.  In  Illi- 
nois, for  example,  the  state  board  of  health  examines  and 
licenses  physicians,  midwives,  and  embalmers,  while  the  last 
named  class  of  practitioners  are  examined  by  the  state  board 
of  health  in  Wisconsin,  Michigan,  Minnesota  and  a  few  other 
states.  In  about  a  dozen  states,  the  state  board  of  health  is 
authorized  to  examine  and  license  persons  desiring  to  prac- 
tice medicine,  while  in  a  number  of  states  the  state  board 
of  health  has  similar  authority  with  respect  to  one  or  two 
others  of  the  classes  of  practitioners  mentioned. 

The  functions  of  examining  and  licensing  frequently  in- 
volve the  exercise  of  other  powers,  such  as  that  of  setting 
up  standards  of  instruction  and  reputability  for  schools  and 
colleges  which  undertake  to  prepare  persons  for  entrance  into 
the  professions.  Furthermore,  the  power  to  examine  and 
license  sometimes  carries  with  it  the  function  of  regulating 
the  practice  of  the  profession  in  question.  Regulations  issued 
for  this  purpose  by  special  state  boards,  such  as  the  barbers' 
examining  board,  are  occasionally  subject  to  approval  by  the 
state  board  of  health.  Licenses  to  practice,  granted  either 
by  the  state  board  of  health  or  by  the  special  examining 
boards,  are  usually  liable  to  be  revoked  for  cause  by  the  grant- 
ing authority,  subject  to  an  appeal  to  the  courts  from  the 
decision  of  the  board.  It  would  seem  that  the  functions  of 
examining  and  licensing  are  not  sufficiently  closely  related 
to  the  ordinary  work  of  the  state  board  of  health  to  include 
them  within  its  active  functions.  The  exercise  of  these  func- 
tions with  respect  to  professions  closely  related  to  the  public 

390 


PUBLIC  HEALTH  ADMINISTRATION 

health  might  be  better  placed  m  the  hands  of  a  single  ex- 
amining board ;  or,  as  is  now  the  practice  in  some  states, 
the  examinations  might  be  conducted  by  a  special  board  or 
boards,  while  the  licenses  are  issued  by  the  state  health  com- 
missioner.^ The  multiplication  of  independent  boards  for 
each  class  of  practitioners  or  trade  should  be  discouraged. 

Prevention  of  Disease. — The  third  division  of  powers  and 
duties  of  state  departments  of  health  is  that  of  taking  meas- 
ures directly  for  the  prevention  or  eradication  of  disease, 
especially  in  epidemic  form,  and,  in  general,  for  the  promo- 
tion of  the  public  health.  In  as  far  as  these  objects  are 
secured,  the  effect  is  brought  about  through  the  control  of 
communicable  diseases.  With  respect  to  any  particular  state 
or  community,  such  diseases  may  arise  in  two  ways :  either 
through  introduction  from  other  states  or  communities,  or 
through  the  existence  of  unsanitary  conditions  within  the 
state  or  community.  Hence,  in  order  to  control  communica- 
ble diseases,  action  must  be  taken  both  to  prevent  their  intro- 
duction from  outside  and  to  eradicate  disease  breeding  con- 
ditions within.  To  secure  the  first  of  these  objects  the  most 
usual  measure  is  the  establishment  of  quarantine.  This  was 
earliest  developed,  of  course,  in  the  seaboard  states,  but  in 
some  of  these  states,  the  control  of  maritime  quarantine  has 
now  been  taken  over  by  the  United  States  Government.  The 
power  of  establishing  quarantine  was  at  first  freely  exercised 
by  local  units  within  a  state  against  each  other,  but  the 
abuses  which  arose  from  this  practice  have  brought  about  an 
increasing  degree  of  state  control,  either  through  direct  ad- 
ministration by  state  officers,  or  through  effective  state  super- 
vision over  local  quarantine  authorities. 

The  second  method  of  controlling  communicable  diseases, 
viz. :  through  the  suppression  of  unsanitary  conditions  within 
the  state,  has  now  become  the  more  important  of  the  two  and 

"  This  plan  is  similar  to  that  recommended  by  the  Minnesota  Com- 
mission on  Efficiency  and  Economy. 


AMERICAN  STATE  ADMINISTRATION 

now  requires  the  greater  part  of  the  energy  of  state  health 
departments.  Among  the  measures  taken  with  this  object 
in  view  are  many  which  have  already  been  mentioned  and 
also  a  number  of  others,  such  as  the  abatement  of  nuisances, 
the  inspection  of  food,  drugs,  milk  and  water  supplies,  and 
supervision  of  sanitary  conditions  in  hotels,  tenements,  lodg- 
ing houses,  slaughter  houses  and  other  places  liable  to  breed 
disease.  Here,  also,  many  of  these  measures  were  formerly 
left  for  the  most  part  to  be  attended  to,  if  at  all,  by  the  local 
authorities,  but  an  increasing  degree  of  state  control  is  mani- 
fest. Some  of  these  functions,  such  as  the  control  of  milk 
and  water  supplies,  are  of  such  a  character  that  local  authori- 
ties do  not  have  sufficient  jurisdiction  to  exercise  them  ade- 
quately, and,  in  such  cases,  the  tendency  towards  state  con- 
trol is  even  more  evident.  Some  of  these  matters  are  at- 
tended to,  not  by  the  state  board  of  health,  but  by  some  special 
state  agency,  such  as  the  Illinois  State  Water  Survey  and  the 
Iowa  State  Board  of  Dairy  Commissioners.  In  some  states 
the  state  board  of  health  is  authorized  to  inspect  factories, 
but  in  most  states  this  function  is  placed  in  the  hands  of  a 
special  state  officer  or  department.  The  division  of  authority 
between  the  state  board  of  health  and  such  special  agencies 
is  not  always  clearly  defined,  and  conflicts  sometimes  arise 
between  them,  as  well  as  between  the  state  and  local  authori- 
ties. For  the  performance  of  these  important  functions, 
numerous  inspectors  are,  of  course,  necessary,  but  in  most 
states  the  funds  at  the  disposal  of  the  state  health  authori- 
ties are  not  sufficient  to  maintain  a  sufficient  force  of  inspec- 
tors in  the  field. 

Eelations  Between  State  and  Local  Authorities. — Previous  to 
the  middle  of  the  nineteenth  century,  public  health  adminis- 
tration was  considered  a  matter  for  the  most  part  properly 
left  to  the  control  of  the  local  authorities.  So  long  as  this 
system  proved  fairly  satisfactory  there  was  no  considerable 
demand   for  state  action,  except,  perhaps,  in  the  matter  of 

392 


PUBLIC  HEALTH  ADMINISTRATION 

maritime  quarantine.  The  growth  of  population  in  congested 
centers,  however,  combined  with  the  inefficiency  of  local  au- 
thorities in  meeting  the  needs  of  new  conditions,  seemed  to 
call  for  some  form  of  centralized  control.  This  was  especially 
true  during  the  outbreak  of  epidemics,  which  occasionally 
brought  about  some  form  of  state  control.  State  action  un- 
der these  circumstances  was,  however,  naturally  spasmodic  in 
character.  When  the  danger  became  less  apparent,  the  lax- 
ness  of  local  autonomy  ensued.  Gradually,  however,  the 
realization  of  the  need  for  continuous  control  of  public  health 
regulations  by  the  authority  best  qualified  to  exercise  such 
control  in  an  efficient  manner  has  led  to  various  forms  of 
state  interference.  Legislative  interference  in  matters  of 
local  concern  has  often  been  very  extensive,  but  state  ad- 
ministrative supervision  is  tending  gradually  to  displace  direct 
legislative  interference. 

The  first  form  of  central  administrative  control  was  based 
on  Mill's  idea  of  the  centralization  of  information.  Research 
and  investigational  work  of  a  scientific  character,  when  con- 
ducted on  a  considerable  scale,  can  usually  be  better  carried 
on  by  the  central  authorities  than  by  the  local  units  of  gov- 
ernment. When  thus  carried  on,  the  results  of  such  work 
can  also  be  made  available  more  economically  to  scattered 
health  officers  in  the  localities.  We  find,  therefore,  that  the 
first  state  boards  of  health  were  originally  established  pri- 
marily for  the  purpose  of  collecting  the  best  avaflable  in- 
formation on  health  matters  and  of  acting  as  a  center  for  the 
distribution  to  the  localities  of  advice  based  upon  such  in- 
formation. For  example,  the  Massachusetts  and  New  York 
state  boards  of  health,  when  first  established,  were,  with 
regard  to  local  authorities,  purely  advisory  bodies.  Bringing 
pressure  to  bear  upon  local  bodies  by  means  of  publicly  given 
advice  is,  in  fact,  even  yet  an  important  function  and  in 
some  cases  the  most  important  function  of  many  state  boards 
with  regard  to  the  local  bodies.     In  most  instances,  the  ad- 

393 


AMERICAN  STATE  ADMINISTRATION 

vice  thus  given  is  not  directly  enforceable,  and  undoubtedly 
often  ignored  by  the  local  authorities,  but  it  nevertheless 
has  considerable  influence.  The  information  and  advice  issued 
consist  in  giving  instructions  to  local  health  officers  as  to 
their  duties,  distributing  compilations  of  public  health  laws, 
and  recommending  model  sanitary  ordinances  and  regulations 
for  adoption  by  local  bodies. 

In  addition  to  the  diffusion  of  information  and  advice  by 
the  state  authorities  other  ways  in  which  the  state  and  local 
authorities  come  into  relation  with  each  other  may  be  sum- 
marized as  follows : 

Reports  by  local  officers. 

State  aid  to  local  bodies. 

Division  of  state  into  districts  and  appointment  by  state 
authority  of  district  inspectors  of  local  health  matters. 

Appointment  of  local  health  officers. 

Removal  of  local  health  officers. 

Approval  by  state  authorities  necessary  to  validate  local 
action  or  reversal  of  local  action  by  state  authorities. 

Assumption  of  local  health  administration  by  state  au- 
thorities upon  failure  of  local  authorities  to  act. 

Issuance  by  state  authorities  of  rules  and  regulations  con- 
trolling local  authorities. 

Decision  by  state  authorities  of  questions  of  disputed 
jurisdiction   between   local  authorities. 

Requirement  for  the  holding  of  state-wide  conferences  by 
local  health  officers. 

Examples  of  these  various  relations  may  be  briefly  indi- 
cated.* 

In  addition  to  the  reports  of  vital  statistics,  which,  as  has 
been  shown,  must  be  sent  by  the  local  health  officers  to  the 
state  registrar  of  vital  statistics,  it  is  also  required  in  a  num- 

*Kerr  and  Moll,  Organization,  Powers  and  Duties  of  Health  Au- 
thorities, p.  48. 

394 


PUBLIC  HEALTH  ADMINISTRATION 

ber  of  states  that  the  state  board  of  health  be  notified  imme- 
diately of  the  appointment,  name  and  address  of  local  health 
officers.  In  the  large  majority  of  states,  periodical  or  special 
reports  regarding  local  health  conditions  are  also  required 
to  be  made  by  the  local  health  authorities  to  the  state  board 
of  health. 

The  method  very  much  in  vogue  in  England  of  granting 
financial  aid  by  the  state  to  local  units  of  government  in  re- 
turn for  a  measure  of  central  control  has  not  yet  developed 
to  any  considerable  extent  in  this  country.  In  Minnesota 
state  aid  has  been  granted  to  at  least  one  locality  by  the  state 
board  of  health,  in  return  for  the  privilege  of  nominating  its 
health  officer. 

The  recent  development  in  some  of  the  more  advanced 
states,  such  as  Massachusetts,  New  York  and  Pennsylvania, 
of  dividing  the  state  into  sanitary  districts  and  appointing 
state  health  inspectors  in  such  districts  has  naturally  had  the 
effect  of  strengthening  the  central  control  over  local  health 
authorities.  The  state  inspectors  are  paid  sufficiently  large 
salaries  so  that  they  can  afford  to  devote  their  whole  time 
to  public  health  work,  which  is  not  the  case  with  most  local 
health  officers.  The  local  unit  of  health  administration  is 
usually  too  small  to  enable  it  financially  to  employ  an  expert, 
full  time  health  officer,  and  the  state  sanitary  inspectors  there- 
fore are  valuable  in  supplementing  the  efforts  of  the  local 
officers  and  in  exercising  an  efficient  supervision  over  them. 

A  more  radical  step  than  the  appointment  of  state  inspec- 
tors for  sanitary  districts  is  the  appointment  by  central  au- 
thority of  the  local  health  officers  themselves.  In  Vermont, 
the  state  board  appoints  all  of  the  local  health  officers.  In 
Florida,  where  there  is  little  purely  local  sanitary  organiza- 
tion, local  health  matters  are  attended  to  by  centrally  ap- 
pointed agents.  In  a  number  of  states,  a  majority  of  the 
members  of  local  boards  of  health  are  subject  to  appoint- 
ment by  the  state  board.     A  qualified  control  over  local  ap- 

395 


AMERICAN  STATE  ADMINISTRATION 

pointments  is  sometimes  found.  In  New  Jersey,  the  state 
board  of  health  establishes  qualifications  of  eligibility  and 
conditions  for  appointment  of  health  officers  by  local  boards. 
In  more  than  a  dozen  states  the  state  board  may  appoint  local 
health  officers  upon  the  failure  of  the  proper  authorities  to 
do  so. 

The  power  of  removal  of  local  health  officers  is  vested  in 
the  state  board  in  more  than  a  dozen  states.  The  power 
is  usually  hedged  about,  however,  with  limitations.  Some 
cause  of  removal  must  generally  be  specified,  and,  in  some 
cases,  the  power  of  the  state  board  is  limited  to  the  filing  of 
charges  against  local  officers.  A  power  tantamount  to  that 
of  removal  is  found  in  Alabama,  where  the  State  Medical 
Association  may  revoke  for  cause  the  charter  of  a  county 
medical  society    (which  acts  as  a  county  board  of  health). 

The  regulations  adopted  by  local  boards  and  officers  must, 
in  a  number  of  states,  including  Connecticut  (Washington 
and  Ohio  in  the  case  of  villages),  be  approved  by  the  state 
board  before  going  into  effect.  In  general,  any  regulations 
made  by  local  boards,  even  where  not  subject  explicitly  to 
approval  by  the  state  board,  must  not  conflict  with  those 
of  the  state  board.  In  some  states,  the  approval  of  the  state 
board  is  necessary  to  validate  the  action  of  the  local  authori- 
ties with  regard  to  special  matters,  such  as  the  adoption  of 
methods  of  sewage  disposal.  We  find  also  that  in  a  few 
states,  the  power  of  the  state  board  extends  beyond  the 
auxiliary  function  of  approving  regulations  of  the  local  au- 
thorities, and  includes  the  power  of  modifying  or  reversing 
such  regulations.  The  power  of  the  state  board  of  health  to 
prescribe  uniform  blanks  for  reporting  vital  statistics  is  an- 
other form  of  local  action  subject  to  central  approval,  the 
only  difference  being  that  indication  as  to  what  the  central 
authority  will  approve  is  in  this  case  made  before  local  action 
takes  place. 

The  demand  in  many  localities  for  home  rule  even  in  pub- 

396 


PUBLIC  HEALTH  ADMINISTRATION 

lie  health  matters  is  often  strong  enough  to  prevent  the 
assumption  by  the  state  of  direct  coercive  authority  over 
the  local  authorities.  But  the  lack  of  central  control  fre- 
quently leads  to  such  laxness  on  the  part  of  the  local  authori- 
ties as  to  constitute  a  serious  menace  to  the  maintenance  of 
the  public  health.  In  such  instances  the  demands  for  home 
rule  on  the  one  hand  and  for  state  control  on  the  other  are, 
in  many  states,  harmonized  by  allowing  the  local  authorities 
to  act  unmolested  so  long  as  they  perform  their  duties  in  an 
efficient  manner,  but  providing  for  the  assumption  of  such 
duties  by  state  authorities  in  case  the  local  bodies  fail  to 
perform  them  or  perform  them  in  an  inefficient  manner. 

In  more  than  a  dozen  states,  if  local  health  officers  are 
not  appointed  or  neglect  to  perform  their  duties  when  ap- 
pointed, the  state  board  may  proceed  to  exercise  the  neces- 
sary functions.  The  New  York  law,  for  example,  provides 
that  "if  any  local  board  of  health  shall  fail  to  appoint  a 
health  officer,  the  state  commissioner  of  health  may,  in  such 
municipality,  exercise  the  powers  of  a  health  officer  thereof." 
In  Illinois,  whenever  local  boards  of  health  or  local  authori- 
ties fail  to  enforce  efficient  measures  for  the  suppression  of 
contagious  diseases,  the  state  board  of  health  may  take  such 
measures  as  seem  necessary,  and  when  local  health  authori- 
ties have  established  quarantine,  the  state  board  may  modify 
or  relax  it,  and,  on  the  other  hand,  where  the  local  authorities 
fail  to  establish  quarantine,  the  state  board  may  do  so.  In 
Illinois,  and  several  other  states,  the  state  board  may  enforce 
its  own  rules  in  the  localities  when  the  local  boards  fail  to 
do  so. 

When  the  state  board  of  health  finds  occasion,  through  the 
laxness  of  local  authorities,  to  take  charge  of  public  health 
administration  in  the  localities,  it  is  generally  provided  that 
the  expenses  incurred  by  the  state  board  in  so  doing  shall 
be  a  charge  upon  the  locality.  A  peculiar  provision  is  found 
in  Maryland,  where  it  is  provided  that  if  the  state  board  of 

397 


AMERICAN  STATE  ADMINISTRATION 

health  has  reason  to  doubt  the  accuracy  of  the  reports  of  any- 
local  registrar,  it  may  take  over  the  work  of  the  local  regis- 
trar for  a  period  of  three  months.  If,  at  the  expiration  of 
that  time,  the  registration  exceed  by  ten  per  cent  the  regis- 
tration by  the  local  registrar  during  corresponding  months, 
then  the  expenses  incurred  become  a  charge  upon  the  lo- 
cality; otherwise  they  are  borne  by  the  state. 

In  these  various  ways  public  health  administration  in  the 
localities  has  been  brought  under  the  administrative  super- 
vision of  state  authorities.  The  increase  of  central  super- 
vision has  generally  resulted  in  increased  efficiency  of  public 
health  administration,  and  has  redounded  to  the  advantage 
both  of  the  localities  and  of  the  state  as  a  whole.  In  Massa- 
chusetts, "while  the  powers  of  the  state  board  have  been 
enormously  increased,  it  has  not  been  at  the  expense  of  the 
importance  of  the  local  boards.  The  work  of  the  state  board 
has  resulted  in  increased  local  activity;  separate  boards  of 
health  have  been  established  where  none  previously  existed, 
and  inactive  boards  have  become  more  efficient."  ^  In  New 
York  there  were  "in  1880  less  than  fifty  local  boards  of 
health  in  the  entire  state  and  they  were  inactive  and  ineffi- 
cient. Within  two  years,  as  a  result  of  the  work  of  the  state 
board  of  health,  a  thousand  local  boards  had  been  organ- 
ized." « 

REFERENCES  AND  COLLATERAL  READING 

Annual  and  Biennial  Reports  of  the  Several  State  Boards  of 
Health. 

Baker,  M.  N.  "City  and  State  Boards  of  Health  and  the  Pro- 
posed Federal  Department  of  Health,"  Conference  for  Good 
City  Government,  1910,  p.  446. 

Bowman,  H.  M.  "The  Administration  of  Iowa,"  Columbia  Uni- 
versity Studies,  1903,  Ch.  IV. 

"  R.  H.  Whitten,  Public  Administration  in  Massachusetts,  p.  y^. 
'  J.  A.  Fairlie,  The  Centralization  of  Administration  in  New  York 
State,  p.  141. 


PUBLIC  HEALTH  ADMINISTRATION 

Chapin,   C.  V,     "State   Boards  of  Health,"  Proceedings  of  the 

American  Political  Science  Association,  i,  p.  143,  1904. 
Dixon,  S.  G.     "Protecting  Public  Health  in  Pennsylvania,"  Annals 

of  the  American  Academy  of  Political  and  Social  Science, 

xxxvii,  p.  339,  191 1. 
Fairlie,  J.  A.     "State  Administration   in  New  York,"  Political 

Science  Quarterly,  xv,  48  ff. 
.     "The    Centralization    of    Administration    in    New    York 

State,"  Columbia  University  Studies,  ix,  No.  3,  Ch.  IV,  1898. 
Fox,    Carroll.     "Public    Health    Administration    in    Maryland," 

U.  S.  Public  Health  Service  Reports,  January  30,  1914. 
Grubbs,  S.  B.     "Public  Health  Administration  in  Illinois,"  Reprint 

No.  275  from  the  Reports  of  the  U.  S.  Public  Health  Service, 

May  21,  1915. 
Kerr,  J.  W.  and  Mall,  A.  A.     "Communicable  Diseases,"  U.  S. 

Public  Health  Service,  Bulletin  No.  62,  July,  1913. 
.     "Organization,  Powers  and  Duties  of  Health  Authorities," 

U.  S.  Public  Health  Service,  Public  Health  Bulletin,  No.  54, 

August,  1912. 
Kerr,  J.  W.     "Vaccination,"  U.  S.  Public  Health  Service,  Bidletin 

No.  52,  January,  1912. 
Magruder,   F.   a.     "Recent   Administration   in   Virginia,"   Johns 

Hopkins  Studies,  xxx.  No.  i,  Ch.  IV,  1912. 
Message  of  Governor  Fielder  transmitting  to  the  (N.  J.)  Legisla- 
ture the   Second  Report  of  the  Commission  upon  the  Reor- 
ganization and  Consolidation  of  the  Different  Departments  of 

the  State  Government,  p.  19. 
Orth,   S.  p.     "The   Centralization   of  Administration   in   Ohio," 

Columbia  University  Studies,  1903,  Ch.  IV. 
Parker,  L.  and  Worthington,  R.  H.     Public  Health  and  Safety, 

1892. 
"The    Organization    of    the    Pennsylvania    State    Department    of 

Health,"  Bulletin  of  the  Pennsylvania  State  Department  of 

Health,  August,  191 1. 
Peabody,  Susan  W.     Historical  Study  of  Legislation  regarding 

Public  Health  in  New  York  and  Massachusetts,  1909. 
Rawles,  W.  a.     "Centralizing  Tendencies  in  the  Administration 

of  Indiana,"  Columbia  University  Studies,  Ch.  IV,  1903. 
Report  of  the  Sulzer  Special  Public  Health  Commission  to  the 

(N.  Y.)  Legislature,  February  19,  1913. 
Shaw,   H.   B,    "The   Legal   Side   of  the  Administration  of  the 

399 


AMERICAN  STATE  ADMINISTRATION 

Health  Laws,"  Bulletin  of  the  Vermont  State  Board  of  Health, 

xi,  No.  4,  p.  35,  191 1. 
The  State  Board  of  Health  of  Massachusetts.    A  Brief  History 

of  Its  Organi::ation  and  Work,   1912. 
State  Public  Health  Statutes  and  Regulations. 
Whitten,    R.    H.     "Public    Administration    in    Massachusetts," 

Columbia  University  Studies,  viii.  No.  4,  Ch.  V,  1898. 


CHAPTER   XV 
THE  ENFORCEMENT  OF  STATE  LAW 

A  function  of  every  state  which  is  fundamental  and  all- 
pervasive,  in  that  its  exercise  is  practically  essential  to  the 
efficient  and  adequate  performance  of  almost  every  other 
function,  is  that  of  enforcing  its  own  laws.  Moreover,  the 
problem  of  law  enforcement  in  the  American  states  becomes 
continually  more  acute  and  pressing  on  account  of  the  con- 
stantly increasing  number  of  laws  to  be  enforced.  The 
growth  of  civilization  and  the  increasing  complexities  of 
modern  conditions  invite  the  constant  growth  of  statute  law 
enacted  to  regulate  such  conditions.  The  assumption  by  the 
state  of  any  new  function  ordinarily  involves  the  enactment 
of  a  law  embodying  the  policy  to  be  pursued  and  indicating 
the  means  to  be  utilized  in  carrying  such  policy  into  effect. 
Scarcely  a  legislature  meets  that  laws  are  not  passed  embody- 
ing the  assumption  by  the  state  of  some  new  function,  whether 
repressive  or  developmental  in  character,  while  old  laws  are 
constantly  being  amended.  The  importance  of  a  law  varies, 
of  course,  in  accordance  with  the  importance  of  the  policy 
which  it  embodies ;  and  as  laws  vary  in  importance,  so  the 
importance  of  their  enforcement  varies  correspondingly, 
though  not  always  in  exact  proportion  to  the  intrinsic  im- 
portance of  the  law  itself.  Irrespective  of  the  importance 
or  triviality  of  particular  laws,  the  enforcement  of  the  mass 
of  state  law  is  a  general  state  function  of  the  first  importance. 
The  maintenance  of  law  and  order,  the  repression  of  crime 
and  the  preservation  of  peace  within  the  state  are  necessary 
conditions  of  social  well-being,  and  no  state  which  is  hope- 

401 


AMERICAN  STATE  ADMINISTRATION 

lessly  unable  to  perform  these  elementary  functions  can  be 
considered  a  satisfactory  type  of  organization  for  the  per- 
formance of  the  higher  developmental  functions. 

If  we  define  law  as  the  set  of  rules  of  human  conduct  which 
are  enforced  by  the  courts  or  by  a  determinate  political  au- 
thority/ then  many  so-called  laws  on  the  statute  books 
of  the  states  are  not  in  reality  laws.  Since  they  are  not 
laws  in  this  sense,  it  may  be  said  that,  with  respect  to  them, 
lawlessness  or  disrespect  of  law  would  be  impossible.  But 
this  would  be  tantamount  to  reasoning  in  a  circle,  and,  for  our 
purpose,  we  may  consider  the  term  law  to  include  all  valid 
provisions  of  constitutions  and  statutes  and  all  valid  ordi- 
nances, rules,  regulations,  and  decisions  issued  by  competent 
political  authorities.  Law  in  this  sense,  as  found  in  the 
American  states,  is  enforced  strictly,  laxly  or  not  at  all, 
varying  with  numerous  concomitant  circumstances  and  condi- 
tions. Such  circumstances  and  conditions  consist  of  the  forces 
which  influence  the  formulation  of  law  and  the  machinery 
which  makes  it,  the  character  of  the  legislative  product,  the 
working  of  the  machinery  provided  for  the  enforcement  of 
the  law,  and  the  nature  of  the  objects  or  conditions  upon 
which  the  law  is  designed  to  operate.  As  these  different 
factors  are  found  to  be  favorable  or  unfavorable  in  varying 
degrees,  so  in  similar  measure  will  the  law  be  more  or  less 
fully  enforced.  An  adequate  discussion  of  the  problem  of 
state  law  enforcement,  therefore,  would  involve  a  considera- 
tion of  such  matters  as  the  demands  of  public  opinion  and 
private  interest  for  or  against  law  enactment,  methods  of 
legislation  as  affecting  the  character  of  laws  enacted,  the 
organization  and  methods  of  courts  of  justice  and  of  the  vari- 
ous executive  and  administrative  officers  and  authorities 
charged  with  the  enforcement  of  law,  and  the  direct  influence 
of  public  opinion  and  private  interest  for  or  against  efficient 

^  Cf .   Holland,  Jurisprudence    (Eleventh  ed.),  p.  41;   Dicey,  Law  of 
the  Constitution  (Seventh  ed.),  p.  23. 

402 


THE  ENFORCEMENT  OF  STATE  LAW 

law  enforcement.  Some  of  these  matters  we  need  only  briefly 
advert  to  at  this  place,  while  others  may  be  more  fully 
considered. 

It  is  practically  impossible,  except  in  a  Utopian  community, 
that  all  law  should  be  held  in  universal  respect.  Therefore, 
no  matter  what  the  condition  of  societies,  as  we  know  them 
at  the  present  day,  nor  what  the  character  of  the  machinery 
provided  for  the  enforcement  of  law,  there  will  always  be 
more  or  less  lawlessness,  and  a  state  can  hope  only  to  ap- 
proximate more  or  less  closely  to  full  and  complete  enforce- 
ment. It  is  a  generally  recognized  fact,  however,  borne  out 
by  statistics  so  far  as  they  are  available,  that  there  is  more 
lawlessness  per  capita  in  the  United  States  than  in  any  other 
country  of  an  equal  degree  of  civilization.  No  explanation 
of  this  phenomenon  which  attributes  it  to  any  single  cause 
can  be  considered  entirely  adequate,  and  various  causes  for 
this  situation  have  been  and  may  be  assigned. 

In  a  democracy,  laws  should  be  the  expression  of  the  popu- 
lar will,  and,  in  a  general  sense,  many  laws  are  enacted  as 
the  result  of  what  may  be  called  the  demands  of  public 
opinion.  Other  things  being  equal,  the  more  a  law  reflects 
the  demands  of  public  opinion,  the  more  apt  it  is  to  be  en- 
forced. In  the  United  States,  however,  it  is  not  always  easy 
to  ascertain  what  are  the  demands  of  public  opinion.  This 
is  due,  not  to  the  lack  of  organs  for  the  expression  of  public 
opinion,  but  rather  to  their  multiplicity.  On  account  of  the 
lack  of  homogeneity  in  the  population,  there  are  many  classes 
in  the  community  whose  interests  are  discordant,  and  it  often 
results,  therefore,  that  the  demands  of  so-called  public  opin- 
ion are  conflicting.  No  one  of  these  classes  may  be  clearly 
in  the  majority,  and,  although  the  action  of  political  parties 
tends  to  reconcile  differences  and  to  clarify  issues,  these  ob- 
jects are  not  always  fully  attained.  Moreover,  the  influence 
of  different  classes  and  interests  upon  the  making  of  law 
is  far  from  being  measured  in  exact  proportion  to  their  ratio 

403 


AMERICAN  STATE  ADMINISTRATION 

to  the  total  population.  Public-spirited  men  and  social  work- 
ers have  sometimes  striven  in  vain  to  steer  through  the  law- 
making bodies  measures  demanded  by  the  most  enlightened 
section  of  public  opinion  in  the  state  and  even  by  the  most 
elementary  dictates  of  reason  and  decency,  such  as  laws  pro- 
viding necessary  regulation  of  private  banking  or  of  the  hours 
of  labor  for  women.  Their  failure  has  in  some  measure  been 
due  to  the  fact  that  the  legislative  instrument  with  which  they 
worked  was  not  organized  in  such  a  way  as  to  be  amenable 
to  influences  striving  for  the  promotion  of  mere  public  in- 
terests. Measures  of  undoubted  benefit,  the  public  need  for 
which  has  been  keenly  realized,  have  been  sidetracked,  buried 
in  graveyard  committees,  or  amended  until  they  bear  no  re- 
semblance to  their  original  form,  while  the  wheels  of  legisla- 
tive action  have  been  greased  for  the  speedy  passage  of  pork- 
barrel  legislation  and  of  other  bills  desired  by  special  in- 
terests, represented  by  powerful  lobbies. 

On  the  other  hand,  a  small  section  of  public  opinion  may, 
on  account  of  superior  organization  and  especially  energetic 
propaganda,  cajole  the  legislature  into  the  passage  of  laws 
which  may  run  counter  to  the  predilections  or  prejudices  of 
a  majority  of  the  people.  Thus,  although  a  law  designed 
to  fit  the  penalty  to  the  criminal  rather  than  to  the  crime 
may  be  based  upon  a  desirable  principle,  nevertheless  some 
communities  may  not  yet  be  sufficiently  advanced  in  the  sci- 
ence of  penology  to  support  such  a  law  wholeheartedly.  The 
abolition  of  capital  punishment  might  tend  to  increase  lynch- 
ings  because  "to  a  considerable  degree  lynchings  represent 
an  attempt  on  the  part  of  private  citizens  to  inflict  that  pun- 
ishment which  in  severity  will  be  proportionate  to  the  heinous- 
ness  of  the  crime."  ^  Even  if  the  enactment  of  a  law  is  de- 
sired by  the  majority  of  people  in  the  community  who  have 
any  opinion  on  the  matter,  it  does  not  follow  that  the  ma- 

*J.   E.   Cutler,   "Capital    Punishment  and  Lynching,"  Annals  of  the 
American  Academy  of  Political  and  Social  Science,  1907,  p.  182. 

404 


THE  ENFORCEMENT  OF  STATE  LAW 

jority  also  desire  to  have  it  enforced.  The  extent  of  the 
demand  for  a  law  in  a  particular  community  does  not  usually 
correspond  exactly  to  the  extent  of  the  willingness  to  obey 
that  law  in  the  same  community.  By  the  enactment  of  the 
law,  the  conscience  of  the  community  is  frequently  satis- 
fied, and  interest  in  its  enforcement  subsides.  The  community 
has  gone  on  record  as  for  or  against  a  particular  rule  of  con- 
duct and  the  law  is  then  left,  as  far  as  public  opinion  is 
concerned,  to  enforce  itself.  It  is  further  to  be  noted  that, 
even  if,  at  the  time  of  the  enactment  of  the  law,  its  enforce- 
ment was  supported  by  an  aroused  public  opinion,  such  sup- 
port may  not  continue  to  manifest  itself  effectively,  either 
through  loss  of  interest  in  the  subject  on  the  part  of  the 
people  or  because  of  a  change  in  the  whole  tone  of  public 
opinion  brought  about  by  the  shifting  of  population,  the 
growth  of  cities,  and  the  influx  of  European  immigrants. 
Under  such  circumstances  a  lax  enforcement  of  the  law  is 
the  natural  consequence. 

The  non-enforcement  of  a  law  may  be  due  to  the  ineffec- 
tive manner  in  which  it  has  been  drawn  up.  Such  a  method 
of  drawing  up  a  law  may  be  either  intentional  or  uninten- 
tional. It  sometimes  happens  that  laws  are  purposely  drawn 
with  faulty  or  unconstitutional  provisions  in  order  that  their 
enforcement  may  be  difficult  or  impossible,  because,  though 
such  laws  are  demanded  by  public  opinion  so  strongly  that 
the  legislature  feels  it  politic  to  at  least  seem  to  yield,  never- 
theless the  law-making  body  is  not  in  sympathy  with  the 
policy  which  such  laws  embody.  Sentiment  in  the  legisla- 
ture opposed  to  the  strict  enforcement  of  the  laws  may  not 
be  sufficient  to  prevent  the  enactment  of  the  laws  but  may 
be  sufficient  to  "draw  the  teeth"  from  them  by  not  provid- 
ing, for  example,  adequate  penalties  for  their  violation,  or 
additional  penalties  for  repeated  violations.  The  law-making 
body  may  thus  itself  connive  at  the  violation  of  law  by  sow- 
ing the  seeds  of  lawlessness  in  the  law  itself. 

405 


AMERICAN  STATE  ADMINISTRATION 

On  the  other  hand,  the  ineffective  character  of  a  law  may 
result  from  unintentional  mistakes  in  drafting  it.  Under 
our  system  of  government,  the  law-making  authorities  are,  of 
course,  largely  separate  from  the  authorities  which  execute 
the  law.  Whatever  advantages  may  be  deemed  to  result 
from  this  separation  of  powers,  a  disadvantage  is  that  ex- 
perience in  the  enforcement  of  laws  is  not  adequately  brought 
to  bear  upon  their  enactment.  The  legislature,  lacking  the 
benefit  of  such  experience,  may  attempt  to  do  by  law  what 
experience  has  shown  cannot  be  accomplished  by  that  method, 
or  may  place  in  the  law  provisions  which  it  is  practically 
impossible  to  carry  out.  The  placing  of  detailed  administra- 
tive provisions  in  an  act,  for  example,  may  defeat  its  en- 
forcement because  the  resulting  rigidity  does  not  allow  neces- 
sary adaptation  of  the  provisions  to  varying  conditions. 
Greater  effectiveness  in  the  enforcement  of  the  act  could  be 
attained  if  its  provisions  were  made  more  flexible  or  general 
in  character,  and  administrative  authorities  charged  with  its 
enforcement  were  empowered  to  formulate  and  apply  supple- 
mentary rules  and  regulations. 

The  due  enforcement  of  law  is  sometimes  rendered  diffi- 
cult by  the  practice  of  declaring  it  to  be  in  effect  immedi- 
ately upon  its  passage.  Although,  according  to  the  legal 
maxim,  ignorance  of  the  law  excuses  no  one,  nevertheless,  as 
a  rule,  the  moral  sense  of  the  community  does  not  support 
the  immediate  enforcement  of  laws  without  sufficient  notice, 
especially  when  they  undertake  to  render  punishable  acts 
which  are  merely  mala  prohihita,  in  so  far  as  these  can  be 
distinguished  from  mala  in  se.  It  is  said  that,  immediately 
upon  the  passage  of  the  race  track  gambling  act  in  New 
York,  a  sheriff,  acting  upon  telegraphic  information,  arrested 
certain  persons  for  violation  of  the  act,  and  brought  them 
for  trial  before  a  judge  who  was  himself  ignorant  of  the  pro- 
visions of  the  law.  In  order  to  avoid  difficulties  of  this  sort, 
the  constitutions  of  some  states  now  provide  that  the  laws 

406 


THE  ENFORCEMENT  OF  STATE  LAW 

shall  not  go  into  effect  immediately  upon  passage,  except  in 
the  case  of  emergency  measures. 

Law  as  a  whole  is  seldom,  if  ever,  perfectly  adapted  to 
the  conditions  upon  which  it  is  intended  to  operate,  but  is 
at  most  only  in  a  continual  process  of  becoming  so  adapted. 
This  situation  arises  in  part  from  the  necessary  generality 
of  the  law  so  that,  though  it  is  adapted  to  many  conditions 
upon  which  it  operates,  it  is  not  adapted  to  all.  It  is  due  in 
part  also  to  the  comparative  difficulty  of  changing  the  law 
so  as  to  adjust  it  accurately  to  various  stages  in  the  momen- 
tary shifting  of  opinions  or  the  steady  evolution  of  conditions 
and  ideals.  This  is  particularly  true  of  the  common  law 
and  of  constitutional  law.  The  doctrine  of  stare  decisis  and 
the  conservative  bent  of  mind  of  judges  and  lawyers  tend 
to  withhold  from  the  common  law  that  flexibility  necessary 
to  its  perfect  adaptation  to  changing  conditions.  The  whole 
common  law  doctrine  of  master  and  servant  may  be  cited  as 
a  conspicuous  example.  With  respect  to  constitutional  law 
the  difficulty  of  change,  both  in  the  case  of  the  national  con- 
stitution and  in  many  of  the  states,  is  so  great  that  not  only 
in  grave  crises,  such  as  that  of  the  Civil  War,  but  also  in 
lesser  emergencies,  the  constitution  may  be  violated  with  the 
connivance  of  both  the  political  and  the  judicial  branches  of 
the  government.  When  the  courts  refuse  under  these  circum- 
stances to  interpret  the  constitution  in  such  a  way  as  virtually 
to  connive  at  its  violation,  their  decisions  may  be  either  dis- 
regarded entirely  or  severely  criticised  and  only  laxly  en- 
forced. An  opinion  of  the  supreme  court  of  Colorado  ad- 
vising the  legislature  of  that  state  that  a  bill  to  weigh  coal 
at  the  mines  in  order  to  fix  the  compensation  of  miners  was 
unconstitutional  was  followed,  it  is  said,  by  strikes  and  dis- 
orders due  to  attempts  to  secure  by  force  what  could  not  be 
secured  by  law.^  In  a  country  such  as  the  United  States, 
where  the  manifold  conditions  which  determine  the  character 

'In  re  House  Bill  203,  21  Colo.,  27. 

407 


AMERICAN  STATE  ADMINISTRATION 

of  the  body  of  law  are  constantly  changing,  the  need  for  new 
laws  is,  of  course,  greater  than  in  countries  where  conditions 
are  more  static  and  quiescent.  Thus,  there  is  in  the  United 
States  a  considerable  need  for  new  laws,  but  unfortunately 
the  supply  of  laws  greatly  exceeds  the  real,  if  not  the  fictitious, 
demand.  The  multiplicity  of  laws  is  accentuated  by  the  large 
number  of  jurisdictions  and  law-making  bodies,  and  there  is 
a  great  lack  of  uniformity  of  legislation  among  the  various 
states.  It  frequently  happens,  moreover,  that  the  laws  as 
passed  are  conflicting  and  sometimes  meaningless.  Under 
these  circumstances  it  can  hardly  be  expected  that  the  laws 
should  generally  be  held  in  very  high  esteem.  It  thus  hap- 
pens that,  since  laws  which  are  not  generally  respected  will 
not  as  a  rule  be  generally  obeyed,  the  multiplicity  of  laws 
has  a  detrimental  effect  upon  their  enforcement.  It  results 
that,  as  has  been  said,  there  are  in  the  United  States  "more 
laws  and  less  law"  than  in  any  other  country. 

Disrespect  for  law  and  consequent  difficulty  in  law  en- 
forcement may  arise,  not  only  from  the  character  and  mulfi- 
plicity  of  laws  but  also  from  the  character  of  the  law- 
making body.  That  the  state  legislatures  have  fallen  into 
sad  disrepute  is  evidenced  by  the  numerous  constitutional 
limits  placed  upon  their  powers.  Legislatures,  moreover,  have 
sometimes  been  alleged  not  to  be  truly  representative  of  the 
people  who  have  elected  them.  This  may  be  due  to  the  fact 
that  the  legislature  has  been  corrupted  by  special  interests, 
or  it  may  arise  from  the  fact  that  the  system  of  apportion- 
ment of  members  among  the  various  districts  of  the  state  is 
faulty.  It  is  well  known  that  large  cities  in  some  states  are 
not  accorded  the  representation  in  the  legislature  to  which 
their  population  as  compared  with  that  of  the  rural  districts 
would  entitle  them.  Whether  on  account  of  legislative  cor- 
ruption or  a  faulty  system  of  apportionment,  many  people 
may  hold  in  disrespect  a  law  in  the  making  of  which  they 
consider  themselves  not  to  have  been  properly  represented. 

408 


THE  ENFORCEMENT  OF  STATE  LAW 

Difficulties  in  the  enforcement  of  law  may  arise  not  only 
from  the  character  of  law  and  law-making,  but  also  from  the 
character,  opinions,  and  interests  of  the  people  upon  whom 
the  law  is  intended  to  operate.  Our  constitutions  and  laws 
in  their  basic  principles  are  for  the  most  part  designed  to 
operate  upon  the  people  of  a  fairly  homogeneous  democracy, 
in  which  approximately  the  same  ideals  of  government,  liberty 
and  law  are  generally  held  throughout  the  community.  As 
a  matter  of  fact,  however,  the  population  of  our  common- 
wealths by  no  means  measures  up  to  this  standard.  The 
millions  of  immigrants  who  have  recently  come  to  our  shores 
from  southern  and  southeastern  Europe  and  the  other  millions 
of  persons  of  African  descent  already  here,  form  heterogene- 
ous groups  to  whom  Anglo-Saxon  ideas  of  government,  lib- 
erty, and  law  are  for  the  most  part  strange  and  inapplicable. 
The  attempt  to  apply  the  same  code  of  conduct  to  such  ex- 
traneous elements  is  not  ordinarily  very  successful  and  fre- 
quent violations  of  the  laws  embodying  such  rules  of  conduct 
is  the  natural  result. 

Even  if  the  populations  of  the  various  states  were  much 
more  nearly  homogeneous  than  they  are  and  Anglo-Saxon 
ideas  of  government  and  liberty  were  nearly  universally  held, 
such  ideas  would  probably  not  be  especially  conducive  to  the 
strict  enforcement  of  law.  The  governor  who,  at  a  recent 
Conference  of  Governors,  declared  that  "when  mobs  are  no 
longer  possible,  liberty  will  be  dead,"  might  have  cited  the 
Boston  Tea  Party  in  support  of  his  statement.  The  spirit  of 
independence  and  of  self-reliant  individualism  which  have 
throughout  our  history  been  characteristic  of  the  great  ma- 
jority of  Americans,  however  noble  may  be  deemed  many  of 
its  manifestations,  nevertheless  tends  to  render  them  some- 
what impatient  of  the  restraints  of  law  and  inclined  at  times 
to  take  the  law  into  their  own  hands.  In  a  democracy  where 
the  people  are  at  least  theoretically  sovereign,  each  citizen 
is  apt  to  consider  himself  an  aliquot  portion  of  that  sov- 

409 


AMERICAN  STATE  ADMINISTRATION 

ereignty  with  a  sovereign  right  of  dispensation  with  respect  to 
whatever  laws  do  not  suit  him.  It  may  be  said  that  there  is 
a  difference  between  disrespect  for  law  in  general  and  disre- 
spect for  particular  laws ;  that  the  former  shows  a  lawless 
spirit,  while  the  latter  is  merely  evidence  of  democratic  in- 
dependence. But  the  latter,  if  not  checked,  is  apt  to  grow 
into  the  former,  and  it  thus  becomes  difficult  to  distinguish 
clearly  between  these  different  manifestations  of  disrespect 
for  law.  Disregard  of  particular  laws  by  prominent  citizens 
in  a  community  tends  to  encourage  disrespect  for  law  in  gen- 
eral, among  the  mass  of  the  people.  In  many  communities 
public  opinion  in  regard  to  law  enforcement  has  become  cal- 
lous, and  there  is  not,  even  among  the  so-called  best  citizens, 
a  sufficient  intolerance  of  lawlessness  or  a  sufficient  insistence 
upon  the  vigorous  enforcement  of  the  law.  It  is  a  truism 
that,  in  a  government  such  as  ours,  a  law  is  difficult  to  en- 
force unless  it  is  supported  by  public  opinion.  It  does  not 
necessarily  follow,  however,  that  a  law  which  is  supported 
by  public  opinion  will  be  strictly  enforced.  The  majority 
of  people  in  the  community  may  be  in  favor  of  the  enforce- 
ment of  the  law,  but  their  support  may  be  lukewarm,  half- 
hearted, disorganized,  so  that  the  influence  which  they  exert 
upon  the  question  of  law  enforcement  is  comparatively  small. 
On  the  other  hand,  a  minority  hostile  to  the  enforcement  of 
the  law  may  exert  a  dominant  influence  upon  the  question  of 
law  enforcement  because  of  more  efficient  organization  and 
more  direct  interest  in  non-enforcement  or  lax  enforcement. 
When  there  is  a  conflict  between  public  opinion  and  private 
interest  over  the  matter  of  law  enforcement,  the  latter  is  apt 
to  have  the  better  of  it  unless  public  opinion  is  more  than 
usually  powerful  and  persistent.  The  desire  to  amass  wealth 
through  carrying  on  an  illegal  business  or  by  pursuing  a  line 
of  conduct  prohibited  by  law  thus  becomes  one  of  the  most 
potent  causes  of  lawlessness.  Whenever  money  can  be  made 
by  conducting  a  business  in  violation  of  law,  a  possible  fund 

410 


THE  ENFORCEMENT  OF  STATE  LAW 

for  the  corruption  of  the  law-enforcing  officers  immediately 
becomes  available.  The  sale  of  liquor,  commercialized  vice 
and  gambling  are  prohibited  by  law  in  many  states,  yet  it  is 
notorious  that  they  exist  in  open  defiance  of  the  law  in  most 
of  the  large  cities,  and  to  some  extent  even  in  the  towns. 
It  is  puerile  to  suppose  that  such  businesses  can  be  carried  on 
on  any  large  scale  without  the  knowledge  of  the  police.  Their 
existence,  therefore,  must  in  large  measure  depend  upon  a 
willingness  to  divide  the  enormous  profits  of  law-breaking 
with  the  police.  If  public  opinion  is  sufficiently  aroused 
against  these  businesses,  they  may  be  compelled  for  a  time 
to  take  to  cover,  but  a  situation  of  this  sort  is  usually  tem- 
porary. On  the  other  hand,  there  is  a  more  permanent  com- 
munity of  interest  between  the  police  and  the  law-breakers. 
The  police  do  not  wish  to  exterminate  such  illegal  businesses, 
for  such  action  would  "kill  the  goose"  which  for  them  "lays 
the  golden  egg."  The  worst  sort  of  an  alliance  is  thus  pro- 
duced between  those  who  desire  to  violate  the  laws  and  those 
whose  duty  it  is  to  enforce  them. 

Unfortunately,  the  situation  with  respect  to  the  enforce- 
ment of  law  against  such  illegal  businesses  is  complicated 
by  the  operation  of  machine  politics.  "Of  all  political  ce- 
ments," as  Benjamin  Franklin  long  ago  pointed  out,  "recipro- 
cal interest  is  the  strongest."  *  Where  a  profitable  business 
is  prohibited  by  law  or  a  particular  method  of  conducting  such 
a  business  is  so  prohibited,  but  such  business  or  method  of  , 
conducting  such  business  is  not  considered  highly  immoral 
by  a  considerable  proportion  of  people  in  the  community,  an 
opportunity  is  opened  for  a  mutual  understanding  between 
those  who  conduct  or  profit  by  such  business  and  one  or  both 
of  the  political  party  machines.  The  party  machines  need 
money  for  success  and  in  exchange  for  it  as  well  as  for  sup- 
port at  the  polls,  they  are  sometimes  prepared  to  reciprocate 

■"An    Historical    Review   of    the    Constitution    and    Government   of 
Pennsylvania   (1759);  P-  73- 

411 


AMERICAN  STATE  ADMINISTRATION 

such  favors  by  granting  special  privileges  to  corporations,  sa- 
loon keepers  and  others  to  carry  on  their  businesses  in  an  ille- 
gal manner.  Laws  making  it  illegal  to  carry  on  such  busi- 
nesses in  a  particular  manner  are  sometimes  enacted  at  the 
instance  of  a  particular  political  party,  ostensibly  In  compli- 
ance with  popular  demand,  but  in  reality  not  for  purposes 
of  enforcement  but  for  purposes  of  blackmail.  In  return  for 
the  privilege  of  violating  such  law,  the  law-breakers  are  ex- 
pected to  support  the  party  with  their  votes  and  money  con- 
tributions. If  they  begin  to  show  signs  of  independence 
either  in  political  allegiance  or  in  refusing  to  pay  blackmail 
the  word  is  passed  to  the  police  and  the  law  is  promptly  en- 
forced against  them.  But  such  independence  is  seldom  dis- 
played, and  thus,  for  the  most  part,  graft  and  lawlessness  go 
hand  in  hand.  That  this  situation  is  inexcusable,  if  not  in- 
explicable, is  evident,  for  the  payment  of  graft  shows  that 
the  law  can  be  enforced  if  the  law-enforcing  officers  so  de- 
sire, for  otherwise  it  would  not  be  paid. 

The  conditions  described  above  are  usually  found  only  in 
those  localities  where  there  is  no  widespread,  insistent  and 
powerful  demand  of  public  opinion  for  the  enforcement  of 
law.  This  attitude  upon  the  part  of  the  public  naturally  in- 
fluences the  officials  elected  by  the  people  of  the  locality  and 
charged  with  the  enforcement  of  the  law,  and  conduces  to 
laxity  in  criminal  prosecutions.  Not  only  in  the  case  of  the 
ordinary  police  force,  but  also  in  the  case  of  all  officers,  such 
as  sheriffs,  prosecuting  attorneys,  justices  of  the  peace,  and 
various  commissioners  and  inspectors,  upon  whose  activity  or 
non-activity  the  bringing  of  law-breakers  to  justice  depends, 
an  indifferent  attitude  upon  the  part  of  the  public  has  an  en- 
ervating effect,  and  if,  to  this  circumstance,  there  be  added 
the  existence  of  individuals  or  corporations  who  are  able  and 
willing  to  pay  for  the  privilege  of  evading  the  law,  the  pos- 
sibility of  corrupt  connivance  of  officials  at  the  violation  of 
law   is   very  great.     The   discretion  of  officials   under  these 

412 


THE  ENFORCEMENT  OF  STATE  LAW 

circumstances  is  not  always  merely  between  action  and  non- 
action, but  is  also  between  efficient  and  lax  action.  Thus, 
justices  of  the  peace  sometimes  let  "bootleggers"  go  with  a 
minimum  fine  even  for  a  repeated  offense,  although  the  evi- 
dence of  their  guilt  is  apparently  conclusive,  while  sheriffs 
sometimes  raid  places  where  liquor  is  being  illegally  sold  but 
fail  apparently  on  purpose  to  secure  the  kind  of  evidence 
which  they   must   know   is   necessary   for   conviction. 

Efficiency  in  the  enforcement  of  the  law  is  also  influenced 
by  the  character  of  the  organization  and  methods  of  the 
machinery  provided  for  such  enforcement.  In  the  first  in- 
stance, considerable  dependence  is  placed  for  the  enforcement 
of  law  upon  private  initiative.  Although  by  constitution  and 
statute  various  prosecuting  officers  are  created  and  established 
both  in  the  state  and  in  the  localities,  nevertheless,  in  accord- 
ance with  the  theory  of  the  English  common  law  as  embodied 
in  many  constitutions  and  statutes,  much  still  depends,  not 
only  in  civil  but  also  in  criminal  cases,  upon  the  industry 
and  initiative  of  private  individuals  and  associations.  The 
law  enacted  in  some  states  allowing  an  individual  who  has 
been  injured  in  person  or  property  by  mob  violence  to  bring 
suit  for  damages  against  the  county,  although  in  form  a  civil 
proceeding,  is  in  reality  the  invocation  of  private  initiative  to 
cope  indirectly  with  criminal  lawlessness.  Under  the  com- 
mon law  and  many  criminal  codes  any  private  person  may 
arrest  without  warrant  for  a  criminal  offense  committed  or 
attempted  in  his  presence.  Although  the  constitutions  and 
statutes  which  create  executive,  law-enforcing  and  prose- 
cuting officers  usually  require  or  imply  that  they  shall  act 
upon  their  own  initiative  in  the  enforcement  of  law,  neverthe- 
less they  frequently  do  not  act  even  in  the  face  of  notorious 
lawlessness  until  goaded  by  threats  of  indictment  or  unless 
petitioned  by  private  individuals  or  associations.  Even  when 
the  alleged  lawbreakers  are  arrested,  under  the  provisions  of 
the  bill  of  rights  giving  persons  accused  of  crime  the  right 

413 


AMERICAN  STATE  ADMINISTRATION 

to  be  confronted  with  the  witnesses  against  them,  the  action 
of  the  aggrieved  individuals  in  appearing  in  court  and  tes- 
tifying against  the  prisoner  is  usually  necessary  to  conviction. 
Private  initiative  in  law  enforcement  is  of  wider  scope,  how- 
ever, than  that  merely  of  the  individuals  directly  aggrieved  by 
acts  of  lawlessness.  Under  the  famous  Iowa  Injunction  and 
Abatement  law,  now  copied  into  the  statute  law  of  a  number 
of  other  states,  if  public  officials  are  derelict  in  the  perform- 
ance of  their  duty  to  suppress  disorderly  houses,  any  citizen 
is  authorized  to  maintain  an  action  in  equity  to  perpetually 
enjoin  such  places.  Many  laws  relating  to  cruelty  to  chil- 
dren or  to  animals  were  not  enforced  until  groups  of  private 
citizens  came  to  the  rescue  with  the  organization  of  societies 
for  the  prevention  of  cruelty  to  children  or  to  animals.  Law 
and  order  leagues  and  vigilance  committees  have  sometimes 
been  organized  with  similar  purposes  and  results.  Lynch 
law  in  some  of  its  manifestations  is  a  form  of  private  initia- 
tive in  the  enforcement  of  law,  where  the  ordinary  official 
machinery  for  its  enforcement  has  broken  down  or  is  mani- 
festly inefficient,  though  this  method  of  law  enforcement  is, 
of  course,  at  the  same  time  a  violation  of  law.  The  offer  of 
rewards  for  information  leading  to  the  arrest  and  conviction 
of  alleged  criminals  is  an  antiquated  and  amateurish  method 
of  bringing  criminals  to  justice  through  invoking  private 
aid  and  is  a  virtual  admission  of  official  incompetence  to  en- 
force the  law  without  private  assistance.  The  resort  to 
such  a  method,  moreover,  is  not  apt  to  be  effective  where 
there  is  considerable  hostile  sentiment  against  the  law,  or 
where  the  lawbreakers  are  organized  and  unscrupulous.  Such 
methods  of  law  enforcement,  while  sometimes  necessary  un- 
der existing  conditions,  would  be  no  longer  justified  if  the 
government  were  sufficiently  energetic  and  efficient  in  the 
enforcement  of  law.  Private  initiative  in  a  democracy  prob- 
ably cannot  and  should  not  be  entirely  dispensed  with  in  se- 
curing the  enforcement  of  law.     But  its  proper  sphere  of 

414 


THE  ENFORCEMENT  OF  STATE  LAW 

operation  consists  not  in  taking  the  place  of  state  action, 
but  only  in  supplementing  it  in  certain  ways.  Organized 
private  agencies,  for  example,  may  be  legitimately  operated 
for  the  purpose  of  keeping  public  opinion  aroused  upon  the 
question  of  law  enforcement,  and  for  the  purpose  of  em- 
ploying permanent  experts  qualified  to  keep  in  touch  with 
the  situation  and  to  aid,  suggest  lines  of  action  to,  and  even 
to  prod  the  officials  charged  with  the  enforcement  of  law. 
Private  agencies  performing  such  functions  are  especially 
valuable  in  communities  where  the  law  enforcing  officers  are 
elected  for  short  terms  and  have  little  opportunity  of  becom- 
ing expert  in  the  performance  of  their  duties. 

Even  in  a  democracy,  however,  much  the  greater  share  of 
the  dependence  for  law  enforcement  must,  of  course,  be  laid 
upon  the  official  agencies  charged  by  law  with  that  duty.  It 
becomes  necessary,  therefore,  to  inquire  to  what  extent  the 
character,  organization  and  methods  of  the  official  machinery 
provided  for  law  enforcement  in  the  states  are  adapted  to 
that  end.  Democratic  governments  do  not,  as  a  rule,  have  as 
much  force  behind  them  as  do  monarchies  and  aristocracies. 
This  is  particularly  true  in  a  democracy  constructed  upon 
the  principle  of  checks  and  balances  and  separation  of  powers. 
To  the  extent  that  powers  are  separated  and  divided  among 
the  various  authorities  of  the  government,  to  that  extent  is 
each  authority  weakened  in  the  enforcement  of  the  law  in- 
trusted to  its  care.  The  machinery  provided  for  the  enforce- 
ment of  state  law  consists  of  various  executive,  administra- 
tive and  judicial  authorities,  more  or  less  separate  and  dis- 
tinct, including  the  state  militia,  the  courts,  the  governor, 
state  or  local  commissioners  and  inspectors,  the  attorney-gen- 
eral, the  local  prosecuting  attorneys,  sheriffs,  mayors,  consta- 
bles, marshals,  police  and  the  posse  comitatus.  In  addition, 
the  enforcement  of  state  law  may  be  affected  by  the  action 
of  the  Federal  courts,  officers,  and  armed  forces.  The  number 
of  authorities  charged  with  the  enforcement  of  law  renders 

415 


AMERICAN  STATE  ADMINISTRATION 

such  enforcement  complicated  and  difficult,  especially  since 
there  is  no  central  controlling  authority  over  them.  The  com- 
parative independence  of  the  various  law-enforcing  agencies 
each  to  the  other  and  the  degree  of  uncontrolled  discretion 
allowed  to  each  frequently  renders  cooperation  between  them 
strained  and  unnatural.  Such  cooperation,  however,  is  essen- 
tial to  efficient  law  enforcement,  for  the  process  of  bringing 
law-breakers  to  justice  or  of  preventing  threatened  infrac- 
tions of  the  law  usually  consists  of  various  steps  or  stages, 
into  each  of  which  the  powers  and  activities  of  more  or  less 
separate  agencies  or  sets  of  agencies  enter  as  the  decisive 
factor.  Thus,  the  process  of  enforcing  the  law  by  punishing 
violators  of  it  consists,  first,  of  the  actual  physical  arrest  of 
the  offenders  by  the  police,  sheriff  or  other  officer,  the  prose- 
cution of  the  offenders  in  court  by  the  public  prosecuting  offi- 
cers charged  with  that  duty,  the  verdict  of  the  jury  and  sen- 
tence by  the  court,  and  the  execution  of  that  sentence  by  the 
sheriff  or  other  executive  officer  of  the  court.  The  vindica- 
tion of  the  law,  therefore,  consists  of  a  chain  composed  of 
several  links,  and  the  chain  is  no  stronger  than  the  weakest 
link.  The  failure  of  justice  may  result  from  dereliction  of 
duty  on  the  part  of  any  officer  or  set  of  officers  composing 
one  of  the  links  of  the  chain.  Some  control,  it  is  true,  may 
be  exercised  by  one  set  of  authorities  over  another,  as,  for 
example,  an  executive  officer  of  a  court  who  failed  or  refused 
to  execute  the  sentence  of  the  court  would  be  liable  to  punish- 
ment for  contempt  of  court  (although  without  the  assistance 
of  other  executive  officers  the  court  would  be  powerless  to 
punish  for  contempt),  and  to  a  slight  extent  a  common  super- 
visory control  over  sheriffs  and  prosecuting  officers  may  be 
exercised  by  the  governor  through  his  power  of  removal, 
while,  in  extreme  cases,  the  legislative  power  of  impeachment 
may  be  invoked.  The  main  reliance,  however,  for  securing 
cooperation  among  the  various  law-enforcing  officers  and  the 
proper  performance  by  each  of  his  duties  is  placed  upon  the 

416 


THE  ENFORCEMENT  OF  STATE  LAW 

fact  that  each  officer  is  subject  to  the  law,  which  prescribes, 
sometimes  minutely,  his  duties.  There  is  thus  in  the  states 
no  administrative  department  of  justice,  but  merely  a  con- 
geries of  more  or  less  separate  officers,  charged  by  law  with 
certain  duties  connected  with  one  phase  or  another  of  law 
enforcement.  It  is  natural  that,  under  these  conditions,  ef- 
fective cooperation  between  the  various  officers  and  authori- 
ties is  not  always  to  be  found.  This  lack  of  cooperation  may 
be  either  negative  or  positive.  Thus,  the  courts  may  be  ready 
to  convict,  but  the  police  officers  may  fail  to  arrest  or  prose- 
cuting attorneys  may  either  fail  to  prosecute  or  may  enter  a 
nolle  prosequi  even  where  the  guilt  of  the  accused  is  evident. 
On  the  other  hand,  actual  conflict  may  take  place  between 
the  various  law-enforcing  officers,  either  for  partisan  politi- 
cal reasons,  or  because  of  at  least  ostensible  differences  in 
the  interpretation  of  the  law.  Thus,  conflicts  may  arise 
with  respect  to  the  enforcement  of  anti-liquor  or  anti-vice 
laws  between  the  law-enforcing  officers  of  a  county  and  those 
of  a  city  located  within  the  county,  as  well  as  between  state 
and  local  officers.  Not  infrequently  the  enforcement  of  vari- 
ous state  laws  by  state  boards  or  other  executive  authori- 
ties is  enjoined,  at  least  temporarily,  by  local  courts,  even 
though  there  can  be  little  doubt  as  to  their  constitutionality. 
Thus,  internal  conflict  arises  between  the  various  law-en- 
forcing authorities,  and  the  result  is  lack  of  cooperation,  dis- 
sipation of  energy  and  the  frequent  evasion  of  the  law  by 
those  who  should  be  brought  to  justice.  When  this  result 
takes  place,  the  people  do  not  usually  know  whom  to  hold 
responsible,  for  the  force  of  public  sentiment,  instead  of  flow- 
ing full  and  strong  in  one  effective  channel,  is  rendered  in- 
effective through  dissipation  among  many  channels.  The 
separation  of  powers  places,  in  ordinary  times,  too  great  a 
task  upon  pubHc  opinion  for  it  to  perform.  The  poHtical 
party  may  sometimes  bind  together  the  various  law-enforcing 
authorities  with  a  common  purpose  and  interest,  but,  unfor- 

417 


AMERICAN  STATE  ADMINISTRATION 

tunately,  this  common  purpose  may  be  the  nullification  of 
the  law.  State  control  of  the  sale  of  impure  food,  for  exam- 
ple, or  of  the  illegal  operations  of  trusts,  through  criminal 
prosecution  of  the  violators  of  its  pure  food  or  anti-trust  laws, 
may  be  rendered  weak  and  ineffective  through  the  underlying 
community  of  interest  between  the  party  machine,  which 
nominates  and  practically  elects  the  officers  charged  with  the 
duty  of  bringing  such  prosecutions  and  the  wealthy  and 
powerful  persons  or  corporations  who  do  not  desire  to  have 
these  laws  strictly  enforced. 

The  system  of  placing  each  law-enforcing  officer  and  au- 
thority under  separate  legislative  control  rather  than  organiz- 
ing them  into  a  close-knit  administrative  department  results 
in  a  lax  and  ineffective  enforcement  of  the  law.  The  legal 
theory  upon  which  this  system  of  legislative  control  is  based 
is  thus  stated  by  Chancellor  Kent :  "When  laws  are  duly 
made  and  promulgated,  they  only  remain  to  be  enforced.  No 
discretion  (on  that  point)  is  submitted  to  the  executive  offi- 
cer." ^  This  idea  is  also  involved  in  the  provision  found  in 
about  fifteen  state  constitutions  to  the  effect  that  laws  shall 
not  or  ought  not  to  be  suspended  except  by  legislative  action.^ 
Thus,  in  pursuance  of  authority  vested  in  him  by  statute,  the 
governor  may  issue  a  proclamation  exempting  certain  counties 
from  the  operation  of  the  law  against  carrying  deadly  weap- 
ons.'^ Further  than  the  legislature  authorizes,  however,  the 
power  of  suspending  laws  is  not  deemed,  in  legal  theory,  to 
extend.  As  a  matter  of  fact,  however,  the  power  o-f  virtually 
suspending  laws  is  at  one  time  or  another  exercised  by  prac- 
tically every  officer  or  authority  charged  with  the  enforcement 
of  the  laws.  A  recent  conspicuous  example  occurred  in  Mis- 
souri,  where   the   insurance   companies   threatened   to   cease 


"  Commentaries,  i,  p.  271. 

•See,  for  example,  Constitution  of  Virginia,  Art.  I,  Sect.  7;   Con- 
stitution of  Massachusetts,  i,  20. 
'  State  vs.   Clayton,  43  Texas,  410. 

418 


THE  ENFORCEMENT  OF  STATE  LAW 

doing  business  in  the  state  as  the  result  of  the  passage  of 
what  they  considered  to  be  a  harsh  insurance  law.  In  this 
emergency  the  governor  and  attorney-general  conferred  to- 
gether and  agreed  to  consider  the  obnoxious  law  unconstitu- 
tional, and  to  refuse  to  enforce  the  law  on  that  ground.  Thus, 
the  law  was  practically  suspended,  though  there  had  been 
no  decision  of  a  court  declaring  it  unconstitutional.  The 
power  of  the  governor  to  suspend  the  operation  of  the  laws 
under  certain  circumstances  has  been  recognized  by  the  Su- 
preme Court  of  West  Virginia,  which  has  held  that,  before 
the  governor  executes  a  law,  he  must  of  necessity  decide 
whether  it  is  constitutional  and  valid  or  not.  If,  in  accord- 
ance with  the  decision  of  the  appellate  court  on  a  similar, 
but  not  the  same,  law,  he  decides  that  a  certain  portion  of  a 
tax  law  is  unconstitutional  and  directs  the  state  auditor  to 
instruct  the  assessors  to  disregard  it,  his  decision  is  valid 
to  the  extent  of  being  binding  upon  auditor  and  assessors.^ 
The  doctrine  or  practice  of  executive  dispensation  has 
ordinarily  found  little  favor.  It  has  been  said  that  "to  per- 
mit an  executive  officer  conclusively  to  determine  for  him- 
self upon  the  validity,  propriety  and  effect  of  a  law,  and 
regulate  its  enforcement  accordingly,  would  be  to  permit  ar- 
bitrary and  despotic  power  to  assert  its  sway,  no  matter  what 
may  be  the  form  of  government."  ®  This  may  be  largely  true, 
and  yet  the  exercise  by  executive  officers  of  the  power  of 
suspending  laws  may  occasionally  not  be  without  some  color 
of  justification.  The  executive  should  not  be  a  mere  "tool 
in  the  legislative  hand,"  for  the  exercise  of  wise  discretion 
is  often  an  essential  condition  of  sound  administration.  Laws, 
however,  frequently  undertake  to  limit  the  discretion  of  the 
enforcing  authorities  by  prescribing  definitely  and  in  detail 
the   precise   method    of   administrative   enforcement   without 

*  State  vs.  Buchanan,  24  W.  Va.  362   (1884). 

*C.  C.  Bonney,  "The  Executive  Power  and  the  Enforcement  of  the 
Laws,"  Lend  a  Hand,  vi,  p.  9. 

419 


AMERICAN  STATE  ADMINISTRATION 

regard  to  variations  in  time,  circumstance  and  condition.  The 
color  of  justification  for  suspending  the  law,  at  least  in 
part,  may  therefore  arise  from  the  undue  rigidity  and  un- 
warranted minuteness  of  the  administrative  provisions  in  the 
law.  This  is  not  an  argument  for  the  non-enforcement  of 
law,  but  rather  for  the  better  construction  of  the  laws  to 
be  enforced.  "No  statute,  save  one  designed  to  operate  only 
on  some  immediate  and  specified  subject  matter,  can  be 
drafted  with  full  foresight  of  the  instances  in  which  its  pro- 
visions will  be  applicable  and  of  the  possible  circumstances 
which  may  render  its  requirements  inadvisable.  It  is  there- 
fore often  highly  expedient  to  vest  in  some  administrative 
authority  a  discretion  as  to  its  enforcement.  As  a  matter  of 
political  fact,  where  no  individual  may  claim  such  enforce- 
ment as  a  private  right,  such  discretion  usually  exists,  for 
the  executive  may  fail  to  enforce  the  law,  however  mandatory 
its  requirements."  ^*' 

The  exercise  by  local  officers  and  authorities  of  the  power 
to  suspend  state  laws  may  take  on  a  color  of  justification 
on  the  ground  that  it  affords  a  measure  of  home  rule  and 
local  self-government  to  an  extent  which  is  denied  under  the 
terms  of  the  existing  law.  From  the  standpoint  of  legal 
doctrine,  the  state  has  the  right  and  power  to  determine  the 
measure  of  home  rule  to  which  the  localities  shall  be  en- 
titled. But  from  the  standpoint  of  public  policy  and  expedi- 
ency, it  may  be  questioned  whether  this  doctrine  is  sound 
in  all  cases.  There  may  be  cases  where  it  is  for  the  best 
interests  and  welfare  not  only  of  the  locality  in  question  but 
also  of  the  state  as  a  whole  that  such  locality  enjoy  a  larger 
measure  of  home  rule  than  the  law,  as  it  stands,  allows.  If 
the  locality  is  powerless  to  obtain  an  alteration  of  the  law, 
then,  it  may,  with  some  show  of  justification,  secure  the 
same  end  by  virtually  suspending  the  operation  of  the  law 


10  ■ 


T.  R.  Powell,  The  Separation  of  Powers,  Political  Science  Quar- 
terly, xxvii,  p.  222. 

420 


THE  ENFORCEMENT  OF  STATE  LAW 

within  its  jurisdiction.  This  is  rendered  possible  on  account 
of  the  existence  of  the  system  of  legislative  centralization  and 
administrative  decentralization  which  still  largely  obtains  in 
the  states.  Whatever  justification  there  may  be,  however,  for 
the  exercise  by  the  localities  of  the  power  to  suspend  laws 
with  respect  to  purely  local  matters,  there  is  no  justification 
for  the  exercise  of  this  power  with  respect  to  laws  the  en- 
forcement of  which  is  of  concern  to  the  whole  state.  It  may 
not  always  be  easy  to  draw  a  sharp  line  between  purely  local 
matters  and  those  of  state-wide  concern,  but  about  many  mat- 
ters there  can  be  little  doubt.  Thus,  the  whole  state  is  in- 
terested in  the  prevention  or  suppression  of  crimes  against 
the  public  health  and  in  the  bringing  to  justice  of  persons 
guilty  of  infamous  crimes;  with  respect  to  such  matters,  no 
locality  can  erect  a  wall  around  its  boundaries  and  live 
wholly  unto  itself. 

The  localities  within  a  state  have,  however,  frequently 
exercised  a  dispensing  power  with  respect  to  the  enforcement 
of  state  laws  dealing  not  only  with  local  matters  but  also 
with  those  of  state  concern.  This  defiance  of  state  law  some- 
times takes  the  form  of  positive  action  in  violation  of  it.  The 
city  of  Denver,  for  example,  adopted  an  amendment  to  its 
home  rule  charter,  purporting  to  give  the  city  the  right  to 
regulate  the  sale  of  intoxicating  liquors  and  to  sell  liquor 
licenses  extending  beyond  the  date  when  the  state  prohibition 
law  was  scheduled  to  take  effect."  The  people  of  Spring- 
field, Illinois,  on  a  referendum  vote  which  was  permitted  to 
get  on  the  ballots  in  1912,  formally  voted  that  the  state  Sun- 
day closing  law  should  not  be  enforced.  What  virtually 
amounts  to  a  referendum  on  the  question  of  the  enforcement 
of  this  law  has  been  afforded  in  practically  every  recent 
mayoral  campaign  in  the  city  of  Chicago,  for  candidates  have 

"  This  charter  provision  was  held  null  and  void.  Cf.  Davis  vs.  Hol- 
land, 168  S.  W.,  II,  where  it  was  held  that  authority  cannot  be  con- 
ferred upon  a  city  to  suspend  state  laws. 

421 


AMERICAN  STATE  ADMINISTRATION 

run  upon  a  platform  of  non-enforcement  of  this  law,  and 
apparently  no  candidate  has  had  much  chance  of  election  who 
did  not  virtually  pledge  himself  to  disregard  this  law  if  elected. 
A  former  mayor  of  Chicago  recently  made  the  public  state- 
ment that  during  more  than  twenty  years  while  he  and  his 
father  occupied  the  mayoral  chair  of  Chicago,  they  had  both 
construed  the  Sunday  closing  law  in  that  city  as  a  dead  letter, 
believing  that  their  attitude  represented  the  majority  senti- 
ment of  the  community.  Practically,  therefore,  the  state  law 
was  nullified  and  an  illegal  or  extra-legal  form  of  local  option 
or  veto  power  was  afforded  the  city  with  respect  to  this  law. 
The  Chicago  City  Council  has  at  times  passed  ordinances 
which  virtually  fly  in  the  face  of  the  state  law  by  requiring 
applicants  for  saloon  licenses  to  accept  conditions  with  which 
they  could  not  comply  without  violating  the  state  law.  When 
the  states  undertook  to  nullify  Federal  law,  the  very  ex- 
istence of  the  Union  was  threatened,  and  the  practical  nulli- 
fication of  state  law  by  the  localities  brings  the  state  face  to 
face  with  a  similar  problem.  It  may  even  be  questioned 
whether  a  state  whose  law  is  systematically  nullified  and 
whose  will  is  set  at  naught  by  the  erection  within  its  borders 
of  municipalities  practically  independent,  within  certain 
spheres,  is  maintaining  a  republican  form  of  government, 
as  required  by  the  Federal  Constitution. 

The  nullification  of  state  law  in  the  localities  is  rendered 
possible  by  the  system  whereby  the  state  depends  for  the 
enforcement  of  its  law  upon  local  officers  who  are  elected  by 
the  people  of  the  locality  and  are  subject  to  no  effective 
state  control.  Under  this  system  the  state  law  is  not  apt 
to  be  strictly  enforced  or  perhaps  not  at  all,  unless  enforce- 
ment is  favored  by  the  public  sentiment  of  the  community 
which  controls  the  agents  of  enforcement.  A  system  of  cen- 
tralized enactment  of  law  combined  with  decentralized  en- 
forcement must,  almost  of  necessity,  fail  to  secure  a  uniform 
enforcement   of   the   law   throughout   the   state,  because   the 

422 


THE  ENFORCEMENT  OF  STATE  LAW 

law  as  enacted  reflects,  at  least  theoretically,  the  common 
standard  represented  by  the  average  opinion  of  the  whole 
state,  while  its  enforcement  is  subjected  to  the  varying  stand- 
ards represented  by  the  varying  local  sentiment  in  different 
sections  of  the  state. 

The  will  of  the  majority  of  the  people  of  the  state  presum- 
ably expressed  in  the  law  is  thus  frequently  thwarted  and 
set  at  naught.  The  prevalent  non-enforcement  of  state  law 
in  the  localities  is  largely  due  to  the  fact  that  the  diffusion 
and  disintegration  of  executive  power  deprives  state-wide 
public  opinion  of  any  adequate  facilities  for  the  control  of 
executive  policy.  Adverse  local  sentiment  and  the  malign  in- 
fluence of  party  managers  cause  petty  executive  officers  to 
interpret  the  state  will  to  suit  their  own  purposes,  and  in 
many  instances  the  latter  actually  control  the  determination 
of  public  policy  within  the  range  of  their  official  activity  or 
possible  lax  or  non-activity.  State  prohibition  and  excise 
laws  remain  unenforced  because  upon  the  officers  charged 
with  their  enforcement  there  rests  no  continuous  pressure  of 
responsibility  to  the  general  public  capable  of  being  applied 
by  the  central  administrative  authority.  State  election  laws 
will  doubtless  continue  to  be  violated  and  wholesale  election 
frauds  to  be  connived  at  under  a  system  in  which  a  com- 
munity of  interest  exists  between  the  party  managers  and 
their  appointees,  the  sheriffs,  and  in  which  the  latter  officers 
in  turn  practically  control  the  selection  of  the  grand  juries. 

Of  many  startling  examples  of  the  disregard  of  law  due  at 
least  in  part  to  the  disintegration  of  the  state  administrative 
system,  the  so-called  "tobacco  war"  in  Kentucky  may  be  cited 
as  an  example.  "In  December,  1905,  in  Todd  County,  in 
the  circuit  court  room,  packed  by  excited  men,  a  lawyer  de- 
clared that  if  they  (the  night  riders)  did  violate  the  law  they 
ought  not  to  be  punished,  and  would  not  be  prosecuted  while 
ne  was  commonwealth's  attorney,  and  the  very  next  night  one 
tobacco  factory  was  burned  and  another  set  on  fire,  and  the 

423 


AMERICAN  STATE  ADMINISTRATION 

following  Monday  night  a  large  band  of  armed  and  masked 
men  held  up  a  railroad  train  and  searched  it  for  tobacco  and 
dynamited  a  snuff  factory,  and  although  the  circuit  court  was 
in  session,  with  a  grand  jury  empaneled,  no  one  was  indicted 
or  punished."  ^^ 

Local  officers  and  even  judges  were  in  sympathy  with  the 
night  riders  and  the  law  was  powerless  to  punish  the  guilty 
since  witnesses  dared  not  testify,  grand  juries  would  not  in- 
dict, and  petit  juries  refused  to  convict.  It  is  significant 
that  the  judges  and  state's  attorneys  were  elected  by  the  peo- 
ple of  the  localities  and  not  subject  to  removal  or  correction 
by  the  governor.  In  legal  theory,  sheriffs,  state's  attorneys 
and  police  are  state  officers,  acting  as  the  agents  of  the  state 
in  their  localities,^^  but  for  practical  purposes  they  are  local 
officers,  because  subject,  in  the  main,  to  local  control  only. 
Other  things  being  equal,  each  local  officer  enforces  the  law, 
or  fails  to  do  so,  in  accordance  with  whichever  course  of 
action  will  best  further  his  political  interests.  The  senti- 
ment of  those  who  control  his  tenure  of  office  or  his  rise  to 
a  higher  office  is  naturally  a  determining  factor,  unless,  in- 
deed, present  inducements  exceed  future  prospects  in  his  es- 
timation. Those  who  bewail  the  prevalent  disregard  of  law 
and  attribute  all  lawlessness  to  the  pusillanimity  of  sheriffs, 
state's  attorneys  and  grand  juries  may  well  consider  whether 
this  condition  of  affairs  is  not  due  rather  to  the  system  of 
nominal  popular  election  of  local  executive  officers  who  are 
thus  actually  placed  under  the  control  of  sinister  unofficial 
influences,  and  to  the  consequent  lack  of  general  popular  con- 
trol over  them  which  might  otherwise  be  exercised  through 
the  effective  administrative  supervision  of  the  state  executive 
authority. 

"  Message  of  Gov.  Willson  of  Kentucky  to  Legislature  of  that  State, 
Jan.,  1908,  quoted  in  Reports  of  American  Bar  Association,  xxxiv, 
p.  416. 

"  Chicago   vs.   Wright,  69  III.,  326. 

424 


THE  ENFORCEMENT  OF  STATE  LAW 

In  order  to  remedy  this  condition  of  affairs,  whereby  the 
localities  set  at  naught  the  will  of  the  state  as  expressed  in 
state  law,  comparatively  little  has  been  done,  but  various 
measures  have  been  proposed  and  some  of  them  put  into 
effect.  Such  measures  may  be  classified  as  legislative,  ju- 
dicial, and  administrative.  The  legislative  power  of  impeach- 
ment has  been  expressly  extended  by  the  constitutions  of  some 
states  to  local  law-enforcing  officers.  Thus,  the  constitution 
of  Alabama  provides  that  a  sheriff  may  be  impeached  "when- 
ever any  prisoner  is  taken  from  jail  or  from  the  custody  of 
the  sheriff  or  his  deputy,  and  put  to  death  or  suffers  grievous 
bodily  harm,  owing  to  the  neglect,  connivance,  cowardice  or 
other  grave  fault  of  such  sheriff."  ^*  Whenever  the  governor 
of  the  state  has  used  his  influence  to  have  this  impeachment 
machinery  brought  into  operation,  the  effect  has  been  to  de- 
crease somewhat  the  number  of  lynchings  in  the  state. 

Although,  in  general,  the  mistakes  of  local  courts  may  be 
corrected  on  appeal  in  the  higher  state  courts,  this  method  of 
controlling  and  correcting  the  action  of  local  courts  in  acquit- 
ting violators  of  state  criminal  laws  is  impracticable  on  ac- 
count of  the  constitutional  limitation  of  double  jeopardy.*^ 
In  order  to  avoid  this  difficulty,  laws  have  been  enacted  in 
some  states,  such  as  Ohio,  Indiana,  and  South  Carolina,  pro- 
viding that  the  county  in  which  a  riot  or  mob  violence  takes 
place  shall  be  liable  in  damages  to  the  person  or  his  legal 
representative  who  has  been  injured  in  person  or  property  by 
such  mob.  A  New  York  law  of  1855  provided  that  if  a  mayor 
or  sheriff  fails  to  provide  proper  means  for  the  protection  of 
private  property  against  destruction  by  mob  or  riot,  the  person 
injured  may  bring  suit  for  damages  against  either  the  county, 
city  or  derelict  officer.     Such  laws  do  not  seem,  however,  to 

"  Sect.  138. 

"  In  some  states,  however,  the  state  has  a  right  of  appeal  when  the 
verdict  has  gone  for  the  prisoner  on  a  point  of  law.  Stimson,  Popular 
Law  Making,  p.  343. 


AMERICAN  STATE  ADMINISTRATION 

have  been  very  effective  in  suppressing  mobs  and  lynchings, 
for  the  persons  who  participate  in  such  disorders  are  not 
usually  those  who  pay  the  largest  proportion  of  the  county 
taxes,  and  even  if  so,  the  prospect  of  future  increase  in  the 
tax  rate  would  scarcely  have  much  effect  in  quelling  the  pas- 
sions of  an  angry  mob.^^  In  so  far  as  lynchings  are  due  to 
the  fear  that  criminals  may  escape  on  account  of  the  cumbrous 
and  antiquated  character  of  the  judicial  system,  they  may 
doubtless  be  lessened  in  frequency  by  an  increase  in  the  speed, 
efficiency  and  certainty  of  the  administration  of  criminal  jus- 
tice. A  method  of  control  over  local  law-enforcing  officers 
which  combines  both  judicial  and  administrative  procedure  is 
found  in  some  states.  Thus,  in  Indiana  and  Nebraska,  a  local 
prosecuting  attorney  who  is  derelict  in  the  performance  of  his 
duties  may  be  ousted  by  the  supreme  court  of  the  state  as  the 
result  of  quo  warranto  proceedings  brought  against  him  by 
the  attorney-general.  Under  the  so-called  Cosson  law,  en- 
acted in  lowa,^^  and  copied  in  some  other  states,  the  attor- 
ney-general may  bring  an  action  in  the  district  court  to  re- 
move any  county  attorney,  sheriff,  mayor,  police  officer,  mar- 
shal or  constable,  for  willful  or  habitual  neglect  or  refusal  to 
enforce  the  law.  "Under  this  law  a  few  removals  have  been 
made,  and  in  many  more  cases  a  threat  of  proceedings  has 
stirred  reluctant  officials  into  activity."  ^^ 

Legislative  and  judicial  methods  and  even  the  combination 
of  judicial  and  administrative  procedure  in  bringing  about  a 
greater  harmony  between  state  law  and  its  enforcement  in  the 
localities,  however,  are,  on  the  whole,  but  makeshifts  and  half- 
way measures.  Such  measures  have  been  enacted  by  law- 
making bodies  which  perceived  the  evils  resulting  from  unre- 
strained  local  option  in  law  enforcement,  but  which  either 

"  Cf.  Cutler,  Lynch  Law,  p.  254. 

"  Laws  of  33rd  General  Assembly  of  Iowa,  Ch.  78.     See  also  South 
Dakota  Session  Laws,  1915,  Ch.  268. 
^'Journal  of  Criminal  Law  and  Criminology,  iii,  p.  927- 

426 


THE  ENFORCEMENT  OF  STATE  LAW 

did  not  perceive  the  correct  method  of  securing  the  enforce- 
ment of  state  law  in  the  locaHties,  or  were  so  imbued  with 
ideas  of  home  rule  and  local  self-government  or  with  fear  of 
arbitrary  state  power  that  they  were  unwilling  to  adopt  it. 
That  the  correct  solution  of  this  difficulty  must  consist,  at 
least  in  part,  of  greater  administrative  centralization  in  law 
enforcement  was  perceived  and  pointed  out  as  early  as  1821 
by  such  men  as  Martin  Van  Buren  and  Rufus  King  in  the 
New  York  Constitutional  Convention  of  that  year.  Van  Bu- 
ren called  attention  to  the  fact  that  the  want  of  proper  ad- 
ministrative connection  between  the  chief  executive  of  the 
state  and  the  local  officers,  such  as  justices  of  the  peace  and 
magistrates,  through  the  agency  of  whom  he  must  execute  the 
laws,  had  produced  endless  difficulties,  embarrassments,  and 
lack  of  cooperation  of  the  public  officers  during  the  late  war 
(of  1812).^^  Rufus  King  was  even  more  emphatic  in  his 
insistence  upon  central  administrative  control  of  local  law- 
enforcing  officers.  "The  sheriffs,"  he  declared,  "are  minis- 
terial officers  directly  connected  with  the  supreme  executive. 
He  is  responsible  for  the  execution  of  the  laws,  and  they  are 
the  agents  and  the  instruments  with  which  he  is  to  execute 
them.  How  can  he  be  responsible  for  the  faithful  perform- 
ance of  this  important  trust,  if  you  deprive  him  of  the  only 
means  by  which  he  can  execute  it?  As  to  executive  offices, 
you  must  therefore  reembody  and  re-unite  them  with  the 
executive  power,  or  destroy  it  by  rendering  it  utterly  incapa- 
ble of  performing  its  high  functions.  The  sheriffs  should  be 
responsible  to  the  executive  and  derive  their  authority  from 
that  source.  .  .  .  How  can  the  governor  be  justly  held  respon- 
sible for  the  faithful  execution  of  the  laws,  if  he  has  no  control 
over  those  by  whom  all  processes,  civil  and  criminal,  are  to  be 
executed ;  who  may  command  the  power  of  the  county  and 
of  the  neighboring  counties  to  their  aid  in  case  of  resistance? 

^^Proceedings  and  Debates  of  the  New  York  Constitutional  Con- 
vention of  1821,  p.  342. 

427 


AMERICAN  STATE  ADMINISTRATION 

Suppose  a  spirit  of  insubordination  and  discontent  to  exist  in 
certain  counties,  which  it  was  a  part  of  the  appropriate  duty 
of  the  executive  to  repress  and  subdue :  Would  you  furnish 
him  beforehand  with  the  excuse,  that  though  he  had  the  best 
disposition  to  perform  his  duty,  you  had  deprived  him  of  the 
means  of  doing  it,  by  vesting  in  other  hands  the  nomination 
of  the  agents  through  whom  alone  he  could  enforce  obedience 
to  the  laws  ?  Is  it  not  risking  the  good  order  and  harmony  of 
society  thus  to  weaken  the  responsibility  of  the  executive?  In 
order  to  secure  this  responsibility,  the  executive  power  must 
be  united,  consolidated,  and  connected  in  all  its  ramifications 
with  the  supreme  government  of  the  state."  ^° 

These  words  of  wisdom  uttered  nearly  a  hundred  years  ago 
have  borne  comparatively  little  fruit  in  the  formation  of  the 
actual  relation  between  the  commonwealth  and  its  political 
subdivisions  with  respect  to  the  enforcement  of  the  laws,  and 
the  result  is  that  scarcely  a  year  passes  that  the  people  of 
some  of  the  states  do  not  awake  with  painful  surprise  to  the 
fact  that  the  state  has  laws  upon  its  statute  books  which  it  is 
apparently  unable  to  enforce  in  some  of  its  counties  and 
cities.  'Tn  the  cities  and  their  respective  counties,  where  con- 
ditions have  resulted  in  the  election  of  officials  to  see  that  the 
law  is  not  enforced,  rather  than  to  enforce  it,  the  state  is 
powerless  to  intervene  in  any  way  to  prevent  the  dishonor  of 
its  laws."  ^^  State  executive  authorities  are  reduced  to  the 
necessity  of  humbly  begging  the  local  officers  to  do  their 
sworn  duty  to  enforce  the  state  laws,  but  to  such  requests  no 
greater  heed  than  necessary  is  usually  given.  To  repeal  the 
laws  which  are  being  nullified  would  be  to  publish  to  the  world 
the  shame  of  the  state's  weakness.  Hence  the  demand  is  for 
new  laws,  more  detailed  and  stringent,  to  assist  in  the  en- 

'^  Proceedings  and  Debates  of  the  New  York  Constitutional  Con- 
vention of  182 1,  p.  387. 

"  Special  Message  of  Gov.  Hooper  of  Tennessee  on  the  Four-Mile 
Law,   1913. 

428 


THE  ENFORCEMENT  OF  STATE  LAW 

forcement  of  the  old.  Thus  the  state,  having  still  more  laws 
to  enforce,  but  without  adequate  machinery  to  that  end,  sinks 
deeper  and  deeper  into  the  deplorable  morass  of  lawlessness. 
In  desperation,  it  has  sometimes  even  been  suggested  that  the 
charters  of  boroughs  and  municipalities  in  which  flagrant  vio- 
lation of  state  law  occurs  should  be  revoked  and  municipal 
home  rule  thus  entirely  abolished.^^ 

For  References  and  Collateral  Reading,  See  End  of  Next 
Chapter. 

"  Message  of  Gov.  Tener  of  Pennsylvania,  1913,  p.  9.  A  North 
Dakota  statute  of  1907  authorizing  the  governor  to  appoint  an  enforce- 
ment commissioner  with  power  to  exercise  in  any  part  of  the  state 
all  of  the  common  law  and  statutory  powers  of  state's  attorneys  in 
the  enforcement  of  the  law  against  the  manufacture  and  sale  of  intoxi- 
cating liquors  was  held  unconstitutional  in  Ex  parte  Corliss,  16  N.  D., 
470,  on  the  ground  that  it  violated  the  reserved  right  of  the  people  to 
have  such  laws  enforced  by  officers  of  their  own  selection. 


CHAPTER  XVI 
THE  ENFORCEMENT  OF  STATE  LAW   (Continued) 

Two  main  difficulties  stand  in  the  way  of  reaching  a  correct 
solution  of  the  problem  of  state  law  enforcement  in  the 
localities.  In  the  first  place,  under  existing  state  legislation, 
there  is  a  conflict  between  the  will  of  the  state  as  embodied  in 
such  legislation  and  the  will  of  the  locality  in  regard  to  the 
expediency  of  such  legislation  as  applied  to  itself.  Unfortu- 
nately, it  frequently  happens  that  the  state  undertakes  to 
regulate  by  law  matters  in  regard  to  which  uniformity  of 
policy  is  not  essential  to  the  well-being  of  the  state,  but  which 
are  in  reality  primarily  local  matters.  Under  these  circum- 
stances a  proper  consideration  for  the  interests  and  sentiments 
of  the  localities  would  require  the  transfer  to  them  of  power 
to  regulate  such  matters  to  suit  themselves.  For  the  solution 
of  this  difficulty,  therefore,  a  broader  legislative  power  should 
be  granted  to  the  localities  than  they  now  possess,  somewhat 
similar  to  that  which  they  enjoy  in  countries  of  Continental 
Europe,  while  state  legislation  should  be  confined  to  the  regu- 
lation of  matters  which  are  of  state-wide  concern,  or  in  which 
state-wide  uniformity  of  policy  is  essential  to  efficiency  of 
administration. 

The  second  main  difficulty,  which  stands  in  the  way  of 
reaching  a  correct  solution  of  the  problem  of  state  law  en- 
forcement in  the  localities,  lies  in  the  fact  that  the  officers  who 
are  charged  with  the  duty  of  enforcing  state  laws  are  fre- 
quently charged  at  the  same  time  with  the  performance  of 
purely  local  functions  and  through  the  method  of  local  elec- 
tion are  for  the  most  part  subject  only  to  the  control  of  the 

430 


THE  ENFORCEMENT  OF  STATE  LAW 

localities.  Under  these  circumstances,  such  officers  play  a  dual 
role  and  owe  a  double  allegiance,  and  if  they  usually  act  as 
though  their  primary  allegiance  in  case  of  conflict  is  to  the 
locality  at  whose  behest  they  hold  their  offices  and  fail  to 
enforce  a  state  law  to  which  local  sentiment  is  hostile,  such  a 
result  is  only  a  natural  consequence  of  the  position  in  which 
such  officers  are  placed.  To  remedy  this  situation,  two  princi- 
pal solutions  may  be  suggested,  and  have  been  to  some  degree 
adopted.  The  first  solution  is  to  place  such  local  officers  under 
state  control.  This  object  may  be  effected  in  various  ways, 
such  as  by  taking  their  selection  out  of  the  hands  of  the  locali- 
ties and  subjecting  them  to  the  direct  appointment  and  re- 
moval of  central  administrative  authorities.  In  this  way  the 
officers  charged  with  the  enforcement  of  state  law  will  be 
brought  under  the  pressure  of  responsibility  to  state-wide  pub- 
lic opinion,  which  would  ordinarily  be  more  favorable  to  the 
enforcement  of  state  law  than  would  be  the  sentiment  of  many 
localities.  To  this  solution  of  the  second  main  difficulty,  how- 
ever, a  legitimate  objection  may  be  urged.  Since  no  new  offi- 
cers have  been  created,  the  law-enforcing  officers  who,  by  this 
proposed  solution,  have  been  placed  under  state  control  are 
still  charged  with  the  performance  also  of  certain  purely  local 
functions.  Moreover,  proper  regard  for  local  interests  re- 
quires that  each  locality  should  have  some  voice  in  the  selec- 
tion and  control  of  those  officers  who  perform  in  that  locality 
functions  of  a  purely  local  character,  while,  at  the  same  time, 
due  consideration  for  the  interests  of  the  state  requires  that 
the  state  should  control  the  officers  charged  with  the  enforce- 
ment of  laws  of  extra-local  concern.  A  better  solution  of  the 
second  main  difficulty,  therefore,  would  consist  in  the  sepa- 
ration of  state  and  local  functions  and  functionaries.  Local 
officers,  charged  with  the  performance  of  local  functions, 
should  continue  to  be  chosen  and  controlled  by  the  localities, 
but  should  be  shorn  of  all  except  local  functions.  For  the 
regulation  of  matters  of  extra-local  concern  and  for  the  en- 

431 


AMERICAN  STATE  ADMINISTRATION 

forcement  of  laws  and  the  performance  of  functions  in  which 
the  state  as  a  whole  is  interested,  state  machinery  and  state 
officers  should  be  created,  who  should  be  subject  to  the  im- 
mediate control  of  central  administrative  authorities.  Such 
new  state  officers  would  not  necessarily  exercise  jurisdiction 
over  districts  corresponding  exactly  to  the  existing  local  politi- 
cal subdivisions  of  the  state.  Upon  the  supposition  that  the 
first  main  difficulty,  enumerated  above,  has  been  met  by  a 
proper  delimitation  of  the  respective  boundaries  of  state  and 
local  legislative  power,  the  adoption  of  this  proposed  solution 
of  the  second  main  difficulty  would  bring  about  a  situation  in 
which  local  ordinances  would  be  enforced  by  local  officers 
while  state  laws  would  be  enforced  by  state  instrumentalities. 
Under  these  conditions,  the  state  might  avoid  the  imputation 
of  facing  two  ways,  of  enacting  laws  and  then  not  providing 
the  machinery  necessary  to  their  enforcement. 

Although  efficiency  in  the  enforcement  of  state  law  is  im- 
peded by  the  prevalent  system  of  administrative  decentraliza- 
tion and  dependence  on  local  authorities,  nevertheless  there 
are  some  indications  of  increasing  state  control  or  supervision 
over  the  enforcement  of  state  law.  To  some  extent,  such  su- 
pervisory power  over  law  enforcement  has  been  vested  in  the 
governor.  The  enforcement  of  the  police  laws  of  the  state 
belongs  primarily  to  the  local  officers  elected  for  that  purpose, 
but  if  such  officers  are  derelict  or  impeded  in  the  performance 
of  their  duties,  the  occasion  may  arise  for  action  on  the  part  of 
the  governor.  As  has  already  been  pointed  out,  the  general 
power  of  the  governor  to  see  that  the  laws  are  faithfully  exe- 
cuted is  of  little  significance  in  the  absence  of  further  specific 
grant  of  power.  This  provision  is  "little  more  than  a  phrase, 
conferring  not  a  single  specific  power  and  sanctioning  merely 
the  privilege  of  issuing  proclamations  or  writing  letters  warn- 
ing officials  to  do  their  duty."  ^    In  some  states,  however,  fur- 

*  E.  Freund,  in  Political  Science  Quarterly,  ix,  408;  cf.  Opinion  of 
the  attorney-general  of  Vermont  on  the  power  of  the  governor  of  that 


THE  ENFORCEMENT  OF  STATE  LAW 

ther  specific  powers  have  been  granted  to  the  governor  by 
constitution  or  statute.  Thus,  in  many  states,  a  small  contin- 
gent fund  is  placed  at  the  disposal  of  the  governor  which  he 
may  use  in  such  ways  as  offering  rewards  for  information  lead- 
ing to  the  arrest  and  conviction  of  law-breakers,  employing 
independent  investigators  to  learn  if  the  law  is  being  violated, 
to  secure  essential  testimony  or  evidence,  and  employing  spe- 
cial counsel  to  assist  in  the  prosecution.  The  fund  at  the  dis- 
posal of  the  governor  to  be  used  in  this  way,  however,  is 
usually  too  small  to  be  of  much  real  service  in  securing  the 
enforcement  of  law.  The  use  of  such  fund  on  the  part  of  the 
governor  is  more  effective  if  combined  with  the  exercise  of 
some  other  specific  administrative  power  in  the  enforcement 
of  the  law.  Thus,  if  the  governor  has  the  power  of  removing 
or  suspending  local  officers  charged  with  the  enforcement  of 
the  law,  he  may  sometimes  effectively  employ  such  fund  in 
discovering  through  special  detectives  whether  such  officers 
are  performing  their  duties  in  a  faithful  manner.  In  some 
states,  notably  New  York  and  Wisconsin,  the  governor  is 
vested  with  the  authority  to  remove  certain  local  law-enforcing 
officers,  such  as  sheriffs  and  prosecuting  attorneys,  for  such 
cause  as  seems  to  him  sufficient.  In  other  states  the  governor 
may  remove  such  officers,  but  only  for  special  causes  stated  in 
the  law.  Thus,  in  Illinois  the  governor  may  remove  a  sheriff 
from  whose  custody  a  prisoner  is  taken  and  lynched.  The 
power  of  the  governor  to  suspend  or  remove  local  law-enforc- 
ing officers  for  cause  is  a  mere  logical  corollary  from  his  re- 
sponsibility under  the  constitution  for  seeing  that  the  laws  are 
faithfully  executed,  but  unfortunately  it  is  not  generally 
granted  to  him.  In  most  states  the  condition  is  very  much  as 
described  by  Governor  Shafroth  of  Colorado:    "I  am  required 


state  to  stop  the  exhibition  of  Jeffries-Johnson  prize  fight  pictures,  in 
violation  of  a  state  law  prohibiting  exhibitions  liable  to  corrupt  the 
morals  of  youth.  Biennial  Report  of  Attorney-General  of  Vermont, 
1910-12,  p.  21. 

433 


AMERICAN  STATE  ADMINISTRATION 

by  the  constitution  to  enforce  the  laws.  But  there  is  not  a 
sheriff  or  other  county  officer  that  is  dependent  upon  me ;  he 
can  defy  me;  he  can  say  T  will  not  enforce  those  laws.'  What 
is  the  efficiency  of  my  office  under  those  circumstances?  The 
only  power  I  have  is  to  call  out  the  militia  to  suppress  some- 
thing." 2  Theoretically,  the  sheriff  is  a  deputy-governor,  act- 
ing in  subordination  to  the  chief  executive.  Theoretically,  the 
governor,  "representing  the  sovereign  executive  power  in  the 
state,  is  always  virtually  present  in  court  to  execute  its  process 
whenever  the  power  of  the  marshal  and  ordinary  posse  may 
not  be  sufficient  for  the  purpose,  or  when  the  peace  and  dig- 
nity of  the  state  may  require."^  But  the  governor  has  no 
authority  to  order  a  sheriff  to  release  a  prisoner  committed  to 
his  custody  by  a  judgment  of  court,*  and  if  courts  and  juries 
fail  to  convict  in  the  face  of  conclusive  evidence  of  guilt,  the 
governor  is  powerless  to  enforce  the  law  through  his  own 
individual  action. 

Something,  however,  may  occasionally  be  accomplished  by 
the  governor  by  means  of  publicity.  As  the  most  conspicuous 
officer  in  the  state,  any  energetic  action  on  his  part  tending  to 
throw  the  light  of  publicity  upon  lawless  conditions  in  any 
part  of  the  state  is  apt  to  arouse  and  bring  to  bear  a  certain 
pressure  of  public  opinion  towards  remedying  such  conditions. 
This  power  of  the  governor,  however,  is  more  effective  when 
exercised  in  connection  with  some  means  of  legal  compulsion 
which  may  be  brought  to  bear  upon  delinquent  local  officials. 
Thus,  in  New  Jersey,  it  is  provided  by  law  that  whenever  the 


'Proceedings  of  Governors'  Conference,  held  at  Washington,  Jan- 
uary, igio,  p.  216.  See  also  Annual  Message  of  Governor  Claude 
Matthews  of  Indiana  to  the  legislature  of  that  state,  1895,  Indiana 
Senate  Journal,  1895,  pp.  39-42. 

'Thomas  vs.  Mead,  36  Mo.,  232. 

*  Ex  parte  Campion,  112  N.  W.,  585;  cf.  Cardoza  vs.  Epps,  23  S.  E., 
296.  For  a  constructive  proposal  looking  toward  state  supervision  over 
sheriffs,  see  Fairlie,  Local  Government  in  Counties,  Towns,  and  Vil- 
lages, p.  268. 

434 


THE  ENFORCEMENT  OF  STATE  LAW 

mayor  or  chief  of  police  of  any  city  shall  receive  from  the 
governor  or  attorney-general  a  written  statement  that  there  is 
reason  to  believe  that  the  state  criminal  law  is  being  violated 
in  designated  places  in  such  city,  it  shall  be  the  duty  of  such 
mayor  or  chief  of  police  to  prosecute  the  guilty  persons  or, to 
prevent  the  continuance  of  such  violations  of  law.  Failure  on 
the  part  of  such  officials  to  take  necessary  action  within  ten 
days  is  declared  a  misdemeanor.^  In  1912  evidence  was  pre- 
sented to  Governor  Wilson  of  New  Jersey  by  the  Anti-Saloon 
League  of  that  state  showing  the  existence  of  lawlessness  in 
Newark  due  to  the  inactivity  of  local  officials.  The  governor 
thereupon  wrote  a  letter  to  the  chief  of  police  of  Newark  as 
well  as  to  the  district  attorney  and  sheriff  of  the  county  calling 
upon  them  to  enforce  the  law.  The  evidence,  he  said,  showed 
that  the  local  officials  "not  only  connived  at  lawlessness,  but 
in  some  instances  countenanced  it  in  person."  The  governor 
had  no  power  to  remove  these  officials,  but,  said  Mr.  Wil- 
son, "I  have  no  means  of  enforcing  this  advice  under  the  laws 
of  the  state  except  public  opinion ;  but  that  is  a  very  powerful 
and  prevailing  force  in  our  day."  Whatever  control  the  gov- 
ernor may  exercise  over  the  enforcement  of  law  through  the, 
force  of  j)ublicity  is  largely  an  extra-legal  power,  and  the 
extent  to  which  it  may  become  an  effective  instrument  de- 
pends to  a  considerable  degree  on  the  personal  qualities  of  the 
governor. 

In  some  states,  the  power  of  the  governor  over  state  law 
enforcement  has  been  strengthened  by  the  enactment  of  laws 
vesting  in  him  the  authority  to  appoint  special  agents  for  the 
enforcement  of  particular  laws.  Probably  the  most  frequent 
instance  of  this  power  of  the  governor  occurs  in  connection 
with  the  enforcement  of  state  prohibition  or  liquor  laws. 
Thus,  a  South  Carolina  act  of  1907  authorized  the  governor  to 
appoint  detectives  to  enforce  the  Dispensary  Law  of  the  state, 

"  New  Jersey  Public  Laws,  1901,  p.  2^.     See  also  Attorney-General 
vs.  Fox,  72  N.  J.  L.,  6. 

435 


AMERICAN  STATE  ADMINISTRATION 

regulating  the  sale  of  intoxicating  liquor.^  The  special  officers 
or  agents  appointed  by  the  governor  are  sometimes  authorized 
to  exercise  the  same  powers  as  are  generally  exercised  by 
certain  law-enforcing  officers.  The  exercise  of  such  powers 
on  the  part  of  the  centrally  appointed  agents  may  be  concur- 
rently with  the  local  officers,  or  may  have  the  effect  of  dis- 
placing such  local  officers  for  the  time  being  with  respect  to 
the  enforcement  of  certain  laws.  Thus,  a  Maine  law  of  1905 
authorized  the  governor  to  appoint  a  board  of  enforcement 
commissioners,  who  are  in  turn  empowered  to  appoint  depu- 
ties with  authority  to  exercise  in  all  parts  of  the  state  the 
powers  of  sheriffs  in  their  counties  in  the  enforcement  of  the 
law  against  the  manufacture  and  sale  of  intoxicants.'^  Simi- 
larly, an  act  passed  in  Oklahoma  empowered  the  governor  to 
appoint  a  special  attorney  who  should,  at  the  direction  of  the 
governor,  assist  in  enforcing  the  state  prohibition  law  and 
should  have  all  powers  of  county  attorneys  in  their  respective 
counties.*  The  power  vested  in  the  governor  to  appoint  special 
enforcing  agents  is  sometimes  developed  into  one  of  a  more 
general  character,  and  not  confined  to  the  enforcement  of  any 
particular  law.  Thus,  a  recent  Oregon  law,^  after  reciting  in 
a  preamble  that  "whereas  the  constitution  requires  the  gover- 
nor to  take  care  that  the  laws  be  faithfully  executed  and  en- 
forced, and  whereas  there  is  no  adequate  provision  by  statute 
to  effectually  carry  out  the  mandate  of  the  said  constitutional 
provision  by  vesting  the  governor  with  authority  to  compel 
observance  of  said  provision,"  enacted  that  whenever,  in  the 

'  Under  this  act,  the  governor  was  held  to  have  the  povi^er  of  con- 
clusively determining  the  necessity  for  the  appointment  of  the  detec- 
tives. Banks  vs.  Wells,  75  S.  E.,  791.  See  also,  South  Carolina  Session 
Lavirs,  1905,  Ch.  470. 

^  Maine  Laws,  1905,  Ch.  92 ;  Gilmore  vs.  Penobscot  Co.,  78  Atl.,  454. 

'Oklahoma  Laws  1907-08,  Ch.  69,  Art.  3,  Sect.  24;  State  vs.  Maben, 
114  Pac,  1 122;  Flood  vs.  State,  27  Okl.,  852.  But  see  Ex  parte  Corliss, 
16  N.  D.,  470. 

'  Session  Laws,  1913,  Ch.  180. 

436 


THE  ENFORCEMENT  OF  STATE  LAW 

opinion  of  the  governor,  the  criminal  laws  of  the  state  are  not 
being  faithfully  executed  and  enforced  in  any  district  of  the 
state,  he  may  lay  the  facts  before  the  circuit  court  for  in- 
vestigation in  a  summary  manner.  If  the  court  finds  that  the 
criminal  laws  are  not  being  faithfully  executed,  the  governor 
may  appoint  for  a  limited  period  such  special  officers,  as  sher- 
iffs, district  attorneys,  or  constables,  as  may  be  necessary  to 
correct  the  failure  to  execute  the  laws.  Such  special  officers 
under  the  direction  of  the  governor  are  to  exercise  the  same 
powers  as  the  regularly  elected  officers. 

Such  special  powers  of  the  governor  in  law  enforcement, 
however,  are  found  only  in  exceptional  cases.  The  usual 
means  which  the  governor  utilizes  for  this  purpose  is  the  call- 
ing out  of  the  state  militia.  The  character  of  the  state  militia 
indicates  in  some  degree  the  extent  to  which  it  may  be  used 
in  law  enforcement.  Since  it  is  composed  for  the  most  part  of 
men  whose  regular  work  lies  in  other  fields,  it  is  not  suitable 
for  utilization  as  a  permanent  body  for  ordinary  law  enforce- 
ment. It  is  rather  intended  as  a  body  to  be  specially  called  out 
on  extraordinary  occasions  when  the  ordinary  machinery  of 
law  enforcement  proves  temporarily  insufficient  or  derelict. 
In  the  absence  of  any  regular,  ordinary  state  machinery  for 
the  enforcement  of  state  law,  that  function  rests  primarily  with 
the  local  law-enforcing  authorities.  "The  enforcement  of  po- 
lice laws,"  it  has  been  said,  "does  not  belong  to  the  governor, 
as  the  chief  executive  officer  of  the  state,  but  belongs  to  the 
officers  elected  for  that  purpose  in  conformity  with  the  pro- 
visions of  the  constitution.  The  constitution  does,  however, 
contemplate  that  when  the  regular  administration  of  the  law 
through  the  courts  of  justice  is  interrupted  by  violence  or 
civil  commotion  the  governor  may,  by  the  military  arm  of  the 
government,  enforce  the  law.  Until  such  event  occurs  the 
law  is  enforceable  in  the  regular  way,  through  the  courts,  and 
the  governor  has  nothing  to  do  with  its  enforcement  except 
where  that  duty  shall  be  especially  enjoined  upon  him,  either 

437 


AMERICAN  STATE  ADMINISTRATION 

by  the  constitution  or  by  some  statute."  ^°  It  scarcely  seems 
necessary,  however,  that  the  duty  should  be  specially  en- 
joined upon  him,  but  merely  that  the  power  should  be  specifi- 
cally granted  to  him.  If  the  power  is  granted,  then,  as  pointed 
out  above,^^  the  governor  is  the  final  judge  as  to  whether  the 
occasion  justifies  the  exercise  of  the  power.  To  this  general 
rule,  however,  there  are  some  exceptions.  In  one  or  two 
states,  the  governor  can  call  out  the  militia  only  with  the 
consent  of  the  legislature.  Furthermore,  the  constitutions 
usually  specify  the  objects  for  which  the  militia  may  be  called 
out,  such  as  to  execute  the  laws,  suppress  insurrection  and 
repel  invasions.  Tlie  term  "execute  the  laws,"  is,  on  its  face, 
broad  enough  to  include  almost  any  use  of  the  militia  for  the 
purpose  of  law  enforcement,  and  the  courts  seldom  attempt 
to  limit  the  discretion  of  the  governor  in  this  respect.  It  has 
been  held,  however,  that  the  governor  has  no  right  to  call  out 
the  militia  to  enforce  his  order  removing  members  of  a  board 
of  police  commissioners.  "The  constitutional  provision  'to 
execute  the  laws,'  "  it  was  said,  "contemplates  the  enforcement 
of  a  judicial  process,  i.e.,  the  enforcement  of  a  right  or  remedy 
provided  by  the  law  and  judicially  determined  and  ordered  to 
be  enforced,  and  not  an  arbitrary  enforcement  by  the  execu- 
tive of  what  he  may  consider  the  law  to  be."  ^^  It  has  also 
been  intimated  that  the  constitution  and  statutes  do  not  con- 
template any  interference  on  the  part  of  the  governor  if  local 
officers  should  merely  refuse  or  neglect  to  enforce  the  law, 
but  only  where  civil  commotion  renders  them  unable  to  en- 
force it.^^  This,  however,  is  too  narrow  an  interpretation  of 
the  governor's  power,  and  would  frequently  prevent  the  gov- 
ernor from  using  practically  the  only  means  at  his  disposal  to 

"  "Opinions  of  the  Attorney-General  of  Illinois,  1905-6,"  p.  371. 

"  Ch.  V. 

"/«  re  Fire  and  Excise  Commissioners,  19  Colo.,  482  (1894)  ;  Trimble 
vs.   People,  19  Colo.,  187. 

"  "Opinions  of  Attorney-General  of  Illinois,  1905-6,"  p.  372.  But  see 
Ibid.,  1913,  p.  81. 


THE  ENFORCEMENT  OF  STATE  LAW 

cope  with  a  condition  of  widespread  lawlessness  due  to  the 
fact  that  the  local  authorities,  charged  with  the  enforcement 
of  the  laws,  are  in  sympathy  with  the  lawless  element.  Al- 
though the  governor  usually  defers  the  calling  out  of  the 
militia  until  requested  to  do  so  by  the  local  authorities,  he 
nevertheless  may  and  sometimes  does  call  them  out  not  only 
in  the  absence  of  any  request  from  such  local  authorities  but 
against  their  wishes. 

Although  the  militia  are  not  infrequently  called  out  to  quell 
mobs  and  prevent  lynchings,  their  most  conspicuous  use  within 
recent  years  has  been  in  suppressing  disorder  incident  to 
strikes  of  organized  labor.  There  are  few  states  of  industrial 
importance  in  which  it  has  not  recently  been  necessary  to  call 
them  out  for  this  purpose,  but  the  instances  occurring  in 
Michigan,  Montana,  Colorado,  and  West  Virginia  may  be  spe- 
cially mentioned.  A  question  which  arises  when  the  militia 
are  called  out  is  that  of  the  relation  which  is  to  exist  between 
the  military  authorities  and  the  local  civil  authorities.  In  the 
Michigan  copper  strike  of  1913,  the  militia  were  called  out  to 
aid  the  local  civil  authorities  to  preserve  the  peace.  The  com- 
mander of  the  militia  in  the  field  even  secured  written  author- 
ity from  the  sheriff  to  make  arrests  and  to  use  such  force  as 
might  be  necessary  to  preserve  order  in  the  county.^*  The 
interference  of  the  state  in  the  Montana  strike  of  1914  was 
preceded  by  a  proclamation  of  martial  law  by  the  Governor, 
The  commanding  officer  of  the  state  militia  thereupon  sus- 
pended and  took  over  the  government  of  Butte  and  Silver  Bow 
County,  and  the  civil  authorities,  such  as  prosecuting  attorney 
and  police  court,  ceased  to  exercise  their  powers.^^  It  was 
subsequently  held  by  the  supreme  court  of  the  state,  however, 
that,  under  the  Montana  Constitution,  the  Governor's  procla- 

"  "Strike  in  the  Copper  Mining  District  of  Michigan,"  U.  S.  Senate 
Doc.  No.  381,  63d  Cong.,  2d  Sess.,  p.  51. 

"  H.  W.  Ballantine,  "Unconstitutional  Claims  of  Military  Authority," 
Journal  of  Criminal  Laiu  and  Criminology,  v,  p.  718  fif. 

439 


AMERICAN  STATE  ADMINISTRATION 

mation  of  martial  law  and  the  placing  of  a  section  ot  the  state 
under  military  rule  could  not  have  the  effect  of  suspending  the 
writ  of  habeas  corpus  nor  the  right  to  jury  trial. ^^ 

By  the  constitutions  of  most  of  the  states,  it  is  provided 
that  the  military  shall  be  in  strict  subordination  to  the  civil 
power,  but  this  restriction  is  frequently  not  observed  except 
technically  through  the  fact  that  the  governor  acts  in  his  civil 
capacity  when  commander-in-chief  of  the  militia.  In  1904, 
the  Governor  of  Colorado  declared  a  county  of  that  state  to 
be  in  a  state  of  insurrection  and  rebellion  and  ordered  out  the 
militia  to  suppress  it.  The  military  authorities  arrested  per- 
sons on  suspicion  of  participation  in  the  disorder,  and  de- 
tained them  in  custody  under  the  orders  of  the  Governor  dur- 
ing the  continuance  of  the  insurrection.  The  question  of  the 
legality  of  this  action  having  been  brought  into  the  Supreme 
Court  of  Colorado,  it  was  held  that  neither  the  determination 
by  the  Governor  of  the  existence  of  the  insurrection  nor  the 
legality  of  the  arrest  and  detention  of  persons  in  custody  of 
the  military  authorities  is  subject  to  review  by  the  courts.^^ 
This  opinion  was  sustained  by  the  Supreme  Court  of  the  United 
States,  which  further  declared  that  "when  it  comes  to  a  deci- 
sion by  the  head  of  the  state  upon  a  matter  involving  its  life, 
the  ordinary  rights  of  individuals  must  yield  to  what  he  deems 
the  necessity  of  the  moment.  Public  danger  warrants  the  sub- 
stitution of  executive  process  for  judicial  process."  ^* 

That  the  power  of  the  governor  may  at  times  expand  in  a 
manner  analogous  to  that  of  the  president  in  time  of  war  was 
illustrated  by  the  situation  which  recently  arose  in  West  Vir- 
ginia as  the  result  of  the  miners'  strike  in  that  state.  In  1912 
the  Governor  of  that  state  proclaimed  martial  law  within  a 

"£jr  parte  MacDonald,  143  Pac,  947. 

"In  re  Moyer,  35  Colo.,  159. 

"  Moyer  vs.  Peabody  et  al,  212  U.  S.,  78,  85.  See  also  "The  Power 
and  Authority  of  the  Governor  and  Militia  in  Domestic  Disturbances," 
a  brief  prepared  by  H.  J.  Hersey,  former  deputy  attorney-general  of 
Colorado,  for  the  United  States  Commission  on  Industrial  Relations. 

440 


THE  ENFORCEMENT  OF  STATE  LAW 

prescribed  zone,  sent  the  state  militia  therein,  and  appointed  a 
military  commission  of  six  military  officers  to  try  all  offenders, 
except  members  of  the  militia,  and  a  court-martial  to  try  the 
latter.  The  rules,  regulations,  and  instructions  for  the  guid- 
ance of  the  military  commission  were  promulgated  by  the 
Governor  through  the  Adjutant  General,  and  provided  that  the 
commission  should  be  a  substitute  for  the  civil  and  criminal 
courts  of  the  district  covered  by  the  martial-law  proclamation, 
and  that  all  offenses  against  the  civil  laws  as  they  existed  prior 
to  the  proclamation  should  be  regarded  as  offenses  under 
the  military  law,  and  as  a  punishment  therefor  the  commission 
could  impose  such  sentences  as  they  might  see  fit.  During  the 
period  of  nearly  eight  months  in  which  martial  law  continued, 
a  large  number  of  citizens  of  the  state  were  convicted  and  sen- 
tenced by  the  commission  without  indictment  or  jury  trial. 
The  constitution  and  statutes  were  practically  suspended  by 
reason  of  the  existence  of  martial  law.^^  Persons  whom  the 
Governor  or  the  commission  had  reason  to  believe  were  en- 
couraging or  participating  in  disorder  were  summarily  arrested 
and  imprisoned,  and  a  newspaper,  the  circulation  of  which  in 
the  territory  under  martial  law  was  deemed  by  them  to  be  an 
incitement  to  riot,  was  summarily  suppressed. 

By  this  extreme  expansion  of  the  military  power  of  the  Gov- 
ernor, his  will  became  practically  the  supreme  authority  in  the 
territory  under  martial  law,  and  the  exercise  of  ordinary  pri- 
vate rights  was  very  seriously  interfered  with.  In  several  impor- 
tant cases,  however,  which  arose  in  the  Supreme  Court  of  the 
state  involving  the  action  of  the  Governor,  that  tribunal  upheld 
his  power  to  declare  a  state  of  war  in  a  prescribed  territory 
and  to  appoint  a  military  commission  for  the  trial  and  punish- 
ment therein  both  on  the  ground  of  necessity  and  self-preser- 
vation of  the  state  and  as  an  incident  to  his  military  power 
under  the  Constitution.    The  court  furthermore  held  that  the 


"William  Gordon  Mathews,  "Martial  Law  in  West  Virginia,"  U.  S. 
Senate  Doc.  No.  230,  63  Cong.,  ist  Sess. 

441 


AMERICAN  STATE  ADMINISTRATION 

necessity  for  the  exercise  of  this  power  by  the  governor  rests 
within  his  official  discretion  and  is  not  reviewable  by  the 
conrt.^°  It  appears,  therefore,  that  the  governor  in  calling  out 
the  militia,  can  do  so  only  to  effect  the  objects  stated  in  the 
constitution,  i.e.,  to  execute  the  laws,  suppress  insurrection 
and  repel  invasion,  but,  in  endeavoring  to  accomplish  these 
objects,  he  may  adopt  such  measures  as  to  him  seem  neces- 
sary for  the  purpose,  even  to  the  extent  of  temporarily  sus- 
pending the  ordinary  laws  and  courts  and  of  exercising  practi- 
cally dictatorial  power.  It  furthermore  appears  from  the  doc- 
trine of  these  cases  that,  for  any  protection  against  the  arbi- 
trary action  of  the  governor  under  these  circumstances,  re- 
course must  be  had,  not  to  the  courts,  but  to  the  political 
responsibility  of  the  governor  to  the  people. 

From  the  experience  which  we  have  had  with  the  use  of  the 
militia  in  enforcing  state  law,  some  inferences  may  be  drawn 
as  to  the  effectiveness  of  this  instrument  in  accomplishing  the 
object  in  view.  The  militia  may  be  useful  as  a  reserve  force 
to  be  used  on  extraordinary  occasions,  but  for  the  ordinary 
enforcement  of  law  it  is  not  available.  "To  call  out  the  mi- 
litia," as  Governor  Shafroth  said,  "to  close  a  saloon  on  Sun- 
day would  be  one  of  the  most  ridiculous  things  in  the 
world."  ^^  It  would  be  as  though  one  used  a  trip  hammer  to 
break  an  egg-shell.  Such  ordinary  enforcement  of  law  re- 
quires a  regular  permanent  police  force.  It  is  needless  to  say 
that  the  state  militia  does  not  answer  this  description.  Fur- 
thermore, on  account  of  the  length  of  time  that  it  takes  the 
militia  to  reach  the  scene  of  trouble  after  being  called  out, 
they  are  not  usually  available  to  prevent  an  outbreak  of  law- 
lessness, but  only  to  suppress  it  after  it  has  happened.  But  in 
the  meantime,  much  property  may  be  destroyed  and  lives  en- 
dangered by  the  lawless  element.    After  being  called  out,  they 

**  Hatfield  vs.  Graham,  8i  S.  E.,  533 ;  State  ex  rel.  Mays  vs.  Brown, 
71  W.  Va.,  527;  Ex  parte  Jones,  71  W.  Va.,  609;  77  S.  E.,  1029. 
^  Governor's  Conference  Proceedings,  1910,  p.  217. 

442 


THE  ENFORCEMENT  OF  STATE  LAW 

cannot  be  kept  on  the  scene  indefinitely,  but  must  in  time  be 
withdrawn,  and  it  has  been  the  frequent  experience  that  out- 
breaks of  lawlessness  at  once  recurred  upon  the  withdrawal  of 
the  troops.  Again,  the  use  of  this  instrument  for  the  enforce- 
ment of  state  law  is  not  only  cumbrous  but  also  expensive. 
The  actual  expense  sometimes  runs  as  high  as  a  million  dol- 
lars, as  in  Pennsylvania  in  1902,  not  counting  damage  to  prop- 
erty and  other  losses. 

The  use  of  the  militia  in  labor  troubles  has  been  satisfac- 
tory on  the  whole  neither  to  the  employers  nor  to  the  em- 
ployees. The  employers,  having  expensive  plants  to  protect 
from  violence  and  not  always  feeling  safe  to  depend  on  the 
state  for  protection,  have  frequently  found  it  necessary  to 
employ  private  and  practically  irresponsible  guards  to  protect 
their  property.  The  use  of  the  militia  in  such  troubles  has  also 
given  rise  to  a  bitter  feeling  towards  them  among  members  of 
labor  unions,  who  are  inclined  to  look  upon  the  militia  as  little 
better  than  the  tools  and  hirelings  of  the  capitalists.  This 
attitude  on  the  part  of  the  labor  unions  may  be  unjustifiable, 
but  that  it  exists  is  undeniable.  The  unions  have  endeavored 
at  times  to  prevent  their  members  from  serving  in  the  militia, 
and  New  York  and  California  have  found  it  necessary  to  pass 
a  law  forbidding  labor  unions  to  pass  by-laws  against  the 
service  of  their  members  in  the  militia.^-  The  political  influ- 
ence of  labor  has  occasionally  been  so  great  that  legislatures 
have  sometimes  been  afraid  to  appropriate  funds  sufficient  to 
pay  the  small  wages  of  the  militia.^^ 

As  is  indicated  by  the  term  "National  Guard,"  which  is  fre- 
quently applied  to  the  state  militia,  the  primary  and  funda- 
mental purpose  of  this  body  is  to  assist  the  small  standing 

**  Stimson,  Popular  Law  Making,  p.  281 ;  California  Penal  Code, 
Sect.  421. 

"  The  militia  in  the  Colorado  strike  of  1914  went  unpaid  for  four 
months.  See  article  by  Ex-Governor  Ammons  on  "The  Colorado 
Strike,"  in  North  American  Review,  July,  1914. 

443 


AMERICAN  STATE  ADMINISTRATION 

army  in  national  defense.  If  it  is  to  be  able  to  accomplish  this 
purpose  satisfactorily,  then  it  should  be  freed  from  strike  duty 
and  other  police  functions  by  which  it  may  become  entangled 
m  internal  social  or  political  struggles.  The  militia  is  not  fitted 
for  police  duties  and  a  state  police  force  or  constabulary  should 
be  provided  for  this  purpose.  To  the  lack  of  such  efficient 
means  of  ordinary  law  enforcement  as  would  be  afforded  by 
a  state  constabulary  may  be  ascribed,  at  least  in  part,  the 
necessity  for  such  an  extreme  stretch  of  the  governor's  mili- 
tary power  as  occurred  in  the  West  Virginia  case  described 
above.  The  dictatorial  power  of  life  and  death  in  the  hands 
of  any  one  man  in  the  state,  however  able  and  upright  he 
may  be,  is  not  a  pleasant  spectacle  for  free  men  to  contem- 
plate. In  cases  of  necessity  it  must  be  endured  as  a  tempo- 
rary evil,  the  justification  for  which  lies  in  the  fact  that  it  is 
the  only  available  means  for  averting  greater  evils  and  for 
bringing  about  a  more  stable  condition  of  peace  and  order. 
It  is  not  the  part  of  wisdom,  however,  to  rest  content  with 
conditions  which  may  render  the  recurrent  exercise  of  such 
extreme  stretches  of  power  necessary,  if  it  can  be  avoided  by 
the  adoption  of  other  measures.  The  establishment  of  a  state 
constabulary  would  probably  render  the  necessity  for  the 
exercise  of  such  extreme  power,  if  not  always  avoidable,  cer- 
tainly less  frequent. 

A  few  states,  in  which  the  responsibility  for  state  enforce- 
ment of  state  law  is  more  keenly  realized  than  in  others,  or 
in  which  peculiar  local  conditions  conducing  to  lawlessness 
exist,  have  already  established  state  police  forces.  Perhaps 
the  most  important  of  these  are  the  Massachusetts  District 
Police,  the  Connecticut  State  Police,  the  Pennsylvania  Con- 
stabulary, and  the  Texas  Rangers.  Probably  the  first  body 
of  state  police  in  the  United  States  was  that  established  in 
Massachusetts  by  an  act  of  1865.  Its  members  were  ap- 
pointed and  removable  by  the  governor  and  council.  Al- 
though created  primarily  for  the  purpose  of  enforcing  the 

444 


THE  ENFORCEMENT  OF  STATE  LAW 

state  prohibitory  liquor  law,  the  force  was  charged  with  the 
enforcement  of  all  state  laws.  The  Governor  of  Massachu- 
setts, in  vetoing  a  bill  passed  in  1868  for  the  abolition  of  the 
state  police,  said :  "It  is  apparent  that  public  decency  and 
order  and  public  justice  require  the  maintenance  of  an  execu- 
tive body  which  shall  not  be  controlled  by  the  public  senti- 
ment of  any  locality;  which  shall  be  competent  in  its  spirit, 
its  discipline  and  its  numbers  to  a  reasonable  and  judicious 
but  just  and  impartial  enforcement  of  the  statutes  of  the 
commonwealth."  ^*  In  1879  the  state  police  department  was 
reorganized  and,  although  known  as  the  district  police,  con- 
tinued in  reality  to  be  a  state  police  force.  Its  members  are 
appointed  by  the  governor  and  removable  by  him.  The  force, 
which  now  consists  of  about  eighty  men,  is  divided  into  an 
inspection  department  and  a  detective  department.  The  for- 
mer is  charged  with  the  inspection  of  factories,  public  build- 
ing and  steam  boilers.  The  members  of  the  detective  depart- 
ment are  empowered  to  act  when  the  local  officials  are  unable 
or  neglect  or  refuse  to  enforce  the  laws.  They  are  at  the 
command  of  the  governor  in  preserving  order  and  suppress- 
ing riots  and  disorder  in  any  part  of  the  state.  The  local 
district  attorneys  may  call  upon  the  state  police  for  aid  in 
the  investigation  of  crimes  and  in  the  collection  of  evidence 
against  criminals,  and  the  state  police  uniformly  cooperate 
with  the  local  authorities  in  such  matters.  The  powers  and 
duties  of  the  state  fire  marshal  are  also  now  vested  in  the 
state  police.  The  chief  of  the  state  police  is  at  the  head  of 
all  its  different  departments. 

The  state  police  department  of  Connecticut  was  established 
in  1903.^'  It  is,  in  the  main,  a  state  bureau  of  criminal  in- 
vestigation. It  is  charged  with  the  duty  of  assisting  in  the 
detection,  investigation  and  prosecution   of  crimes  when   re- 

"  Quoted   by   Whitten,    "Public    Administration    in    Massachusetts," 
Columbia  University  Studies,  viii,  p.  469. 
"  Connecticut  Acts  of  1903,  p.  100. 

445 


AMERICAN  STATE  ADMINISTRATION 

quested  by  the  governor  or  local  prosecuting  officers.  In 
carrying  out  these  functions,  the  state  police  are  authorized 
to  exercise  the  same  powers  as  sheriffs,  police  officers  or  con- 
stables. They  are  also  charged  with  the  inspection  of  moving 
picture  machines  and  pawnbrokers'  shops,  with  the  duties  of 
the  state  fire  marshal,  and  with  enforcing  the  act  relating  to 
motor  vehicles,  when  requested  by  the  secretary  of  state  or 
local  officers. 

The  largest  state  police  force  maintained  by  any  state  Is 
that  of  Pennsylvania.    It  was  created  by  an  act  of  1905,  con- 
sists of  more  than  two  hundred  mounted  officers  and  men, 
and   is   modeled   after  the   Canadian   northwestern   mounted 
police.     Under  a  Pennsylvania  act  of  1865,  certain  corpora- 
tions were  allowed  to  employ  private  policemen  or  guards  to 
protect  their  property.     These  so-called  "coal  and  iron  po- 
lice" became  extremely  unpopular  with  the  employees  of  the 
corporations,  for  they  were  paid  and  controlled  by  the  prop- 
erty-owning corporations.    In  the  mining  districts  of  the  state 
there  were  large  numbers  of  recently  arrived  immigrants  and 
frequent  strikes  and  labor  troubles  occurred.    When  the  "coal 
and  iron  police"  were  unable  to  cope  with  the  situation,  Pink- 
erton  men  were  employed  and  the  sheriff  swore  in  deputies 
and  summoned  the  posse  comitatus.     In  severe  disturbances, 
these  measures  usually  failed  and  it  sometimes  became  neces- 
sary for  the  governor  to  call  out  the  entire  state  militia  and 
declare  martial  law.    This  method  of  quelling  the  disturbance 
was  slow,  cumbrous  and  expensive.     To  deal  with  such  dis- 
turbances in  an  efficient  and  expeditious  manner  was  the  pri- 
mary object  of  the  establishment  of  the  Pennsylvania  Con- 
stabulary in   1905.     The  superintendent  of  the  constabulary 
is  appointed  by  the  governor  and  senate  and  is  made  entirely 
responsible   for  the   selection   and   management  of  the  men 
under  him.     The  members  of  the  force  are  divided  into  four 
troops  and  stationed  in  different  quarters  of  the  state.    They 
are   empowered   to   make   arrests   without   warrant    and   to 

446 


THE  ENFORCEMENT  OF  STATE  LAW 

serve  and  execute  warrants  issued  by  the  proper  authorities ; 
to  cooperate  with  the  local  authorities  in  detecting  crime,  ap- 
prehending criminals  and  preserving  law  and  order  through- 
out the  state ;  and  to  act  as  forest,  fire,  game  and  fish  wardens. 
Although  the  Pennsylvania  Constabulary  is  a  police  force, 
nevertheless  it  has  all  the  appearances  of  a  military  force,  and 
its  presence  usually  inspires  respect  even  from  the  lawless 
class.  A  dozen  members  of  the  constabulary  have  been  known 
to  quell  a  mob  of  several  hundred  persons.  Of  the  arrests 
made  by  the  constabulary,  an  average  of  about  90  per  cent 
are  convicted.  This  is  due,  in  part  at  least,  to  the  fact  that 
the  members  are  instructed  in  the  criminal  laws  of  the  state 
and  know  what  evidence  it  is  necessary  to  secure  for  convic- 
tion. Although  they  have  aroused  the  enmity  of  some  of  the 
labor  unions,  who  have  dubbed  them  the  "American  Cos- 
sacks" and  have  attempted  to  have  the  force  abolished,  and 
although  some  friction  and  opposition  on  the  part  of  local 
authorities  has  been  engendered  in  some  instances,  neverthe- 
less the  establishment  of  the  state  police  has  undoubtedly 
brought  about  a  more  efficient  enforcement  of  law.  Although 
the  force  has  on  a  number  of  occasions  been  used  to  meet 
emergencies  such  as  riots  and  labor  disturbances,  its  duties 
are  by  no  means  confined  to  such  emergencies.  In  fact, 
although  it  has  sometimes  done  notable  service  in  the  cities, 
as  in  the  Philadelphia  street  car  strike  of  1910,  its  principal 
function  has  been  to  act  as  a  continuous  rural  police  for  the 
apprehension  of  the  perpetrators  of  ordinary  crimes,  for 
which  the  use  of  the  state  militia  would  be  entirely  imprac- 
ticable. During  the  first  seven  years  of  its  history,  the  con- 
stabulary traveled  over  more  than  three  million  miles  of 
rural  roads  and  made  more  than  45,000  arrests.  They  have 
assisted  in  extinguishing  forest  fires,  have  made  many  ar- 
rests for  the  violation  of  the  game  laws,  and  have  frequently 
assisted  the  health  officers  in  maintaining  quarantine  during 
an  epidemic  of  some  contagious  disease  and  in  preventing  the 

447 


AMERICAN  STATE  ADMINISTRATION 

pollution  of  streams.  They  have  confiscated  supplies  of 
opium  and  dynamite  and  have  raided  gambling  resorts,  dis- 
orderly houses  and  places  where  liquor  was  being  illegally 
sold.  They  have  afforded  protection  from  fire,  flood  and  other 
troubles  to  localities  which  have  no  adequate  police  force 
and  are  too  far  removed  from  large  centers  of  population  to 
obtain  quick  aid  in  case  of  necessity. 

In  view  of  the  services  rendered  by  the  state  police,  its 
value  can  scarcely  be  doubted.  Its  members  are  mostly  army 
men,  trained  and  picked  solely  with  reference  to  their  quali- 
fications for  the  work.  In  the  management  of  the  force  there 
is  unity  and  concentration  of  control,  action  and  responsi- 
bility. The  force  is  not  affected  by  political  considerations 
nor  by  the  prejudices,  influences  or  unconscious  restraints 
which  sometimes  render  local  constables  and  police  forces 
useless  for  the  enforcement  of  state  law.  The  cost  of  main- 
tenance of  the  state  police,  moreover,  is  small  in  comparison 
with  the  benefits.  The  Massachusetts  District  Police  costs 
about  $200,000  a  year,  while  the  annual  expenditure  on  ac- 
count of  the  Pennsylvania  Constabulary  is  now  somewhat 
more  than  $300,000.  The  mere  additional  security  afforded 
to  the  residents  of  the  state  is  amply  sufficient  to  counterbal- 
ance this  expenditure,  but  to  such  additional  security  should 
be  added  the  additional  amounts  of  fines,  forfeitures  and  con- 
fiscations which  accrue  to  the  state,  the  prevention  of  property 
losses  by  fire,  theft,  and  violence,  and  the  increase  in  property 
values  which  results  from  the  greater  security  arising  from 
the  existence  and  activities  of  the  state  police.  There  is  also 
a  great  saving  to  the  state  due  to  the  fact  that  the  existence 
of  the  state  police  frequently  renders  it  unnecessary  for  the 
state  to  undergo  the  expense  of  calling  out  the  state  militia. 
Since  the  establishment  of  the  Pennsylvania  Constabulary,  it 
has  not  been  necessary  to  call  out  the  militia  in  that  state,  al- 
though on  a  number  of  occasions  an  amount  of  disorder  ex- 
isted which  would  have  rendered  the  calling  out  of  the  militia 

448 


THE  ENFORCEMENT  OF  STATE  LAW 

necessary  if  the  constabulary  had  not  existed.  During  the 
existence  of  the  Massachusetts  District  Police,  it  has  also  been 
unnecessary  to  order  out  the  militia  except  in  the  case  of  the 
Lawrence  strike  of  191 3.  The  existence  of  the  state  police, 
by  rendering  the  use  of  the  militia  for  strike  duty  ordinarily' 
unnecessary,  is  likely  to  have  a  beneficial  effect  upon  the  latter 
body.  Enlistments  in  the  militia  are  likely  to  increase  both 
from  the  class  of  organized  labor  and  from  others  who  are 
deterred  from  enlisting  by  dislike  for  strike  duty.  Moreover, 
the  withdrawal  of  the  militia  or  National  Guard  from  use  in 
labor  troubles  and  from  police  duty  in  general  would  prob- 
ably enable  it  to  approximate  more  nearly  to  a  really  national 
institution  to  be  used  as  a  reserve  in  case  of  war.^* 

The  failure  or  inability  of  local  authorities  in  the  rural  dis- 
tricts to  enforce  the  law  in  their  jurisdictions  has  been  the 
primary  reason  for  the  establishment  of  the  state  police.  If  it 
be  argued  that  the  state  constabulary  system  encourages  local 
law  enforcing  officials  to  permit  their  organizations  for  crime 
detection  to  become  atrophied  through  reliance  on  the  state 
police,  the  answer  is  that  in  many  rural  districts  they  are  al- 
ready in  this  condition.  This  situation  was  realized  in 
Indiana  as  early  as  1852,  when  a  law  was  enacted  legalizing 
private  associations  formed  for  the  purpose  of  detecting  and 
apprehending  horse  thieves  and  other  felons.  The  members 
of  these  associations  were  "entitled  to  all  the  rights  and  privi- 
leges of  constables.  They  arrested  and  punished  individuals 
without  bringing  them  before  the  ordinary  legal  tribunals  of 
the  state."  ^^  Such  a  dangerous  grant  of  power  to  private 
associations  would  not  now  be  considered  a  proper  remedy  for 
the  breakdown  of  the  local  machinery  of  law  enforcement. 

'■  On  the  Federalization  of  the  National  Guard,  see  N.  W.  MacChes- 
ney,  "National  Defense — Constitutionality  of  Pending  Legislation,"  in 
University  of  Pennsylvania  Law  Review,  February  and  March,  1916. 

"  Rawles,  "Centralizing  Tendencies  in  the  Administration  of  Indi- 
ana," Columbia  University  Studies,  xvii,  p.  308. 

449 


AMERICAN  STATE  ADMINISTRATION 

On  the  other  hand  local  sentiment  does  not  even  yet  readily 
tolerate  complete  state  centralization  of  law  enforcement  in 
the  localities.  Moreover,  local  officers,  even  in  rural  districts, 
are  fairly  efficient  in  the  performance  of  certain  functions, 
such  as  acting  as  the  executive  officers  of  local  courts  and 
executing  civil  process,  and  may  be  retained  for  these  pur- 
poses. But  for  the  more  serious  business  of  enforcing  state 
law  in  the  rural  districts,  a  state  police  force  is  almost  a  neces- 
sity. In  the  cities,  the  feeling  in  favor  of  the  maintenance  of 
the  principle  of  home  rule  is  stronger,  and,  moreover,  the 
cities  are  better  policed  by  their  local  constabularies  than  are 
the  rural  districts.  The  principle  of  home  rule  requires  that 
the  city  police  should  be  appointed,  officered  and  governed  by 
local  authorities.  But  the  failure  or  refusal  of  city  police 
forces  to  enforce  certain  state  laws  which  were  not  favored 
by  local  sentiment,  such  as  Sunday  closing  and  prohibition 
laws,  has  led  in  some  states  to  a  movement  for  state  controlled 
municipal  police.  Such  centralized  administration  of  the  po- 
lice force  of  a  particular  city  or  metropolitan  area  was  first 
introduced  in  New  York  in  1857,  and  in  1861  was  applied  to 
Chicago.^®  A  somewhat  rudimentary  form  of  such  control 
was  applied  to  Cincinnati  in  1886  through  the  creation  of  a 
centrally  appointed  board  which  should  act  as  an  advisory 
body  to  the  executive  head  of  the  city  police  force.  In  1883, 
Indiana  provided  by  law  for  the  appointment  by  state  author- 
ity of  boards  of  police  commissioners  for  all  cities  of  29,000 
inhabitants  or  over,  and  the  system  was  subsequently  extended 
to  other  and  smaller  cities.  The  system  of  metropolitan  po- 
lice has  received  its  most  extensive  application  in  Baltimore, 
Boston  and  St.  Louis.  The  police  forces  of  Baltimore  and 
St.  Louis  have  been  placed  under  boards  of  police  commis- 
sioners appointed  by  state  authority,  while  in  the  case  of  Bos- 
ton there  is  a  single  commissioner  appointed  by  the  governor 
of  the  state.  It  has  been  recommended  by  the  governor  of 
^^  Illinois   Public  Laws,   1861,  p.    151. 

450 


THE  ENFORCEMENT  OF  STATE  LAW 

Maryland  that  the  board  of  police  commissioners  for  Balti- 
more, consisting  of  three  members,  be  displaced  by  a  single 
commissioner,  with  a  salary  sufficient  to  justify  him  in  de- 
voting his  whole  time  to  the  office.^^  The  Boston  police  have 
been  under  state  control  since  1885,  and  this  has  served  to 
remove  them  in  a  measure  from  the  influence  of  local  politics. 
"There  can  be  no  doubt  whatever  that  the  system  of  state 
control  has  brought  about  a  most  marked  improvement  in 
every  branch  of  Boston's  police  administration."  ^°  On  the 
other  hand,  the  placing  of  city  police  under  state  control  has 
sometimes  been  effected  largely  for  political  reasons,  with  the 
result  that  the  city  police  force  is  under  the  control  of  the 
state  boss  instead  of  the  city  boss.  A  bi-partisan  state  board 
tends  to  foster  such  partisan-political  control.  Nevertheless, 
in  the  enforcement  of  laws  such  as  those  regulating  the  liquor 
traffic,  which  are  opposed  by  local  sentiment  but  which  pre- 
sumably represent  state-wide  sentiment,  a  state  controlled 
police  force  is  apt  to  be  more  efficient.  "The  necessity  of' 
central  administrative  intervention  in  the  control  of  the  liquor 
traffic  is  usually  deduced  from  the  importance  of  breaking  a 
circuit  of  vicious  influences,  whereby  the  saloon,  as  an  insti- 
tution, controls  voters,  voters  elect  the  local  authorities,  and 
the  local  authorities  appoint  and  direct  the  officers  of  the  law. 
By  putting  the  officer  under  central  responsibility  and  local 
irresponsibility,  he  is  freed,  to  a  great  extent,  from  the  force 
of  politico-personal  influence  that  can  be  brought  to  bear  by 
directly  interested  parties.  The  principle  cuts  both  ways : 
The  officer  is  no  more  bound  to  observe  the  better  sentiment 
of  the  community  than  he  is  free  to  disregard  the  wishes  of 
the  vicious  element.  Influences  may  also  operate  on  the  cen- 
tral administrative  head  similar  to  those  which  corrupt  local 

**  Message  of  Governor  Crothers  of  Maryland,  1912.  Maryland 
Senate  Journal,  1912,  p.  76. 

'"G.  H.  McCaffrey,  "The  Boston  Police  Department,"  Journal  of 
Criminal  Law  and  Criminology,  ii,  p.  678. 


AMERICAN  STATE  ADMINISTRATION 

authorities.  The  whole  scheme  may  seem  to  be  a  mere  re- 
moval of  the  place  of  barter  from  the  city  hall  to  the  state 
house.  This  very  removal,  however,  puts  the  field  of  action 
upon  a  higher  plane.  .  .  .  Whatever  the  inducements  that 
may  be  offered  the  governor  to  favor  particular  interests  in 
the  metropolis,  they  cannot  be  brought  to  bear  upon  him  with 
such  direct  force  as  upon  the  mayor  whose  entire  constitu- 
ency is  in  the  field  of  their  immediate  influence.  The  gover- 
nor is,  at  least  in  part,  outside  the  vicious  circle."  ^^ 

A  legitimate  objection,  however,  may  be  urged  against  the 
system  of  metropolitan  police.  Although  city  police  have 
been  held  by  some  courts  to  be  state  officers  and  are  charged 
with  the  duty  of  enforcing  the  law  of  the  state  within  their 
jurisdiction,  nevertheless  a  large  part  of  their  functions  con- 
sists in  the  enforcement  of  local  ordinances.  Moreover,  the 
connection  between  the  work  of  the  police  and  of  other  de- 
partments of  the  city  government  is  so  close  that  disorganiza- 
tion may  be  injected  into  the  administration  of  municipal  af- 
fairs unless  all  the  departments  of  the  city  government  are 
under  the  supervision  of  a  single  head.  This  objection  might 
be  met  by  allowing  the  cities  to  retain  control  of  their  police 
forces,  which  would  be  charged  with  the  enforcement  of  local 
ordinances  and  state  laws  which  the  state  is  no  more  inter- 
ested in  enforcing  than  the  municipality,  while  transferring 
to  an  enlarged  state  constabulary  the  enforcement  in  the 
cities  of  such  state  laws  as  experience  has  shown  the  locally 
controlled  police  department  cannot  be  depended  upon  to  en- 
force. 

While  thus  yielding  to  the  cities  the  immediate  control  of 
their  local  police  forces,  the  state  might  still  retain  some 
degree  of  supervision  over  them.  The  state  might  set  up  a 
standard  of  efficiency  for  municipal  police  forces  and  exact 
a  penalty  from  those  cities  whose  forces  fall  below  the  stand- 

"  Sites,  "Centralized  Administration  of  Liquor  Laws,"  Columbia 
University  Studies,  x,  pp.  402-403. 


THE  ENFORCEMENT  OF  STATE  LAW 

ard,  while  granting  aid  to  those  whose  torces  meet  or  sur- 
pass such  standard.  The  administration  of  such  a  system  of 
state  supervision  over  municipal  police  forces  would  doubt- 
less require  the  creation  of  a  state  police  commissioner  or 
department.  The  determination  of  the  efficiency  of  municipal 
police  forces  would  require  that  the  state  police  department 
be  vested  with  adequate  powers  of  inspection  and  investiga- 
tion. The  discovery  through  such  investigations  of  condi- 
tions of  glaring  inefficiency  in  city  police  forces  might  assist 
in  remedying  such  conditions  not  only  through  the  exaction 
of  the  proposed  penalty  but  also  through  the  publicity  which 
the  exposure  by  the  state  department  would  entail.  The  head 
of  the  state  police  department  would  have  immediate  charge 
of  the  state  constabulary  as  well  as  supervision  of  the  city 
police  forces,  and  the  department  might  serve  as  a  center  of 
information  regarding  statistics  of  crime  and  criminal  condi- 
tions in  all  parts  of  the  state.^^ 

Although  a  state  police  force  might  be  utilized  to  a  con- 
siderable extent  in  connection  with  the  newer  phases  and 
enlarged  sphere  of  state  activities,  as  in  the  case  of  the  Massa- 
chusetts District  Police,  nevertheless  the  work  of  such  a 
force  will  doubtless  continue  in  large  measure  to  consist  of 
the  performance  of  conventional  police  functions.  However, 
although  the  repressive  activities  of  the  state  are  still  of  fun- 
damental importance,  the  work  of  the  state  is  becoming  more 
and  more  developmental  in  character.  Repressive  and  devel- 
opmental functions,  however,  cannot  be  wholly  separated,  for 
in  the  performance  of  its  developmental  functions,  the  state 
frequently  finds  it  necessary  to  take  repressive  measures. 
Thus,  the  term  "compulsory  education"  may  seem  to  some  a 


"  L.  F.  Fuld,  in  his  "Police  Administration,"  pp.  418  ff.,  suggests  that 
there  should  be  established  in  each  state  a  state  police  department  in 
charge  of  a  state  commissioner  of  police  and  divided  into  three 
bureaus, — a  bureau  of  rural  constabulary,  a  bureau  of  criminal  investi- 
gation, and  a  city  police  bureau. 

453 


AMERICAN  STATE  ADMINISTRATION 

contradiction  in  terms,  yet  it  illustrates  this  close  connection 
between  the  developmental  and  repressive  functions.  Again, 
in  conserving  the  public  health,  the  state  may  find  it  necessary 
to  suppress  or  abate  nuisances  which  menace  it.  Such  a  com- 
bination of  the  developmental  and  repressive  functions  of  gov- 
ernment is  frequently  vested  in  the  same  state  agency  or  de- 
partment. 

As  a  general  rule,  each  of  the  numerous  boards,  commis- 
sions and  bureaus  found  in  the  various  states  is  charged  with 
the  enforcement,  or  with  the  supervision  of  the  enforcement, 
of  some  portion  of  the  substantive  law  of  the  state.^^  Thus,  the 
Wisconsin  Industrial  Commission  is  charged  with  the  adminis- 
tration and  enforcement  of  a  considerable  portion  of  the  laws 
of  that  state  relating  to  the  conditions  of  employment.  Seldom, 
however,  is  the  complete  enforcement  of  an  act  vested  in  any 
state  administrative  agency  or  authority  without  the  concur- 
rent action  of  some  other  authority,  state  or  local,  adminis- 
trative or  judicial.  A  state  administrative  agency  may  be 
vested  with  powers  of  investigation  to  discover  whether  the 
law  is  being  violated.  If  there  exists  no  further  power  than 
that  of  investigation  and  recommendation,  as  in  the  case  of 
the  Massachusetts  Railroad  Commission  of  1869,  then  prac- 
tically the  only  means  of  enforcement  is  through  the  force 
of  public  opinion  resulting  from  exposure  and  publicity. 
Sometimes  the  discovery  by  the  state  board  or  commission 
of  violations  of  law  may  render  the  guilty  persons  liable  to 
prosecution  in  court,  but  for  the  maintenance  of  such  prose- 
cutions the  state  board  is  dependent  upon  the  cooperation  of 
the  local  prosecuting  attorney  of  the  county  in  which  the  vio- 

"The  law  thus  enforced  by  state  boards  may  either  be  enacted  in 
detail  by  the  legislature,  or  the  board  may  itself  be  authorized  to  enact 
the  laws  which  it  is  created  to  enforce.  Thus,  the  State  Health 
Department  of  New  Jersey  is  empowered  to  enact  a  sanitary  code, 
which  shall  have  the  force  and  effect  of  law  and  be  observed  through- 
out the  state.     New  Jersey  Session  Laws,  1915,  Ch.  288. 

454 


THE  ENFORCEMENT  OF  STATE  LAW 

lations  occur,^*  or  the  board  may  be  dependent  upon  sheriffs, 
constables  and  other  local  conservators  of  the  peace  to  make 
arrests  for  the  violation  of  the  state  law.  The  unreliability 
of  such  local  officers,  for  this  purpose,  however,  has  fre- 
quently resulted  in  the  extension  to  the  officers,  agents  and 
employees  of  state  boards  and  departments  of  the  concur- 
rent, if  not  exclusive,  power  of  exercising  such  police  func- 
tions. For  example,  California  has  vested  in  the  deputies  and 
agents  of  the  state  labor  commissioner  the  power  and  author- 
ity of  sheriffs  and  other  peace  officers  to  make  arrests  and  to 
serve  any  process  throughout  the  state  in  the  enforcement 
of  the  state  labor  laws.^^  The  Illinois  Fish  and  Game  Com- 
mission, its  wardens  and  deputies,  are  empowered,  without 
warrant,  to  arrest  anyone  violating  provisions  of  the  fish 
and  game  law.^^  The  members  of  the  state  department  thus 
become  a  special  state  police  force  for  the  enforcement  of 
the  particular  portion  of  the  substantive  law  of  the  state  in- 
trusted to  their  charge. 

In  order  to  safeguard  private  rights  from  encroachment 
through  arbitrary  administrative  action,  it  has  usually  been 
deemed  necessary  that  any  such  action  should  be  subject  to 
judicial  review.  The  promotion  of  the  social  welfare,  how- 
ever, often  requires  a  considerable  scope  of  administrative 
action.  We  find,  therefore,  that  even  where  final  court  action 
may  be  necessary,  the  enforcement  of  state  law  may  be  se- 
cured to  a  considerable  extent  through  preliminary  actions  of 
administrative  authorities.  Thus,  though  convictions  may  be 
had  and  penalties  imposed  only  by  the  courts,  nevertheless 
the  enforcement  of  state  law  is  promoted  by  the  more  effi- 
cient machinery  for  the  detection  of  its  violation  which  the 

"  Thus,  prosecutions  for  violation  of  the  pure  food  law  of  Illinois 
are  under  the  control  of  the  state's  attorney  of  the  proper  county. 
Illinois   Session  Laws,  1915,  p.  710,   Sect.  40  A. 

"^  Statutes  of  California,   1915,  Ch.  484. 

"Illinois  Session  Laws,  1915,  p.  461. 

455 


AMERICAN  STATE  ADMINISTRATION 

state  administrative  agency  affords,  and  violations  may  be 
prevented  through  the  fear  of  detection  inspired  by  the  exist- 
ence of  such  machinery.  State  boards  and  departments,  or 
their  agents,  are  frequently  empowered  to  take  preliminary 
action  having  an  important  bearing  upon  the  enforcement  of 
the  law.  State  administrative  agencies,  in  the  exercise  of 
the  police  power  of  the  state,  may  adopt  special  methods  which 
may  have  the  effect  of  preventing  the  violation  of  the  law. 
Such  methods  secure  publicity  and  regulation  through  such 
devices  as  licenses  and  permits,  bonds  and  deposits  as  security, 
requirement  of  notices,  marks  and  signs,  reports  and  regis- 
tration, and  inspection  and  search.^^  Such  preliminary  action 
may  be  taken  either  against  things  or  persons.  Thus,  short 
measures,  incorrect  weights  or  scales,  impure  articles  of  food, 
and  game  and  fish  illegally  had  in  possession,  may  be  seized 
and  held  to  be  used  in  evidence.  Persons  suspected  of  viola- 
tion of  law  may  be  arrested  or  may  be  notified  to  appear  be- 
fore a  state  board  for  a  preliminary  hearing.  In  conducting 
such  hearings  and  inquiries  the  board  may  be  empowered  to 
administer  oaths,  subpena  and  examine  witnesses  and  issue 
subpenas  duces  tecum,  requiring  the  production  of  books  and 
papers.  As  the  result  of  such  hearing  the  board  may  revoke 
licenses  to  engage  in  certain  professions  or  businesses,  or  may 
start  prosecutions  in  the  proper  court.  If,  however,  the 
person  whose  license  has  been  revoked  continues  to  practice 
the  profession,  or  persons  who  are  subpenaed  to  appear  at 
such  hearings  fail  to  appear,  or  refuse  to  testify  or  testify 
falsely  when  they  appear,  the  state  board  may  be  compelled 
to  resort  to  court  action.  In  order  to  avoid  the  danger  of 
unconstitutionality  through  violation  of  the  principle  of  sepa- 
ration of  powers,  Virginia  and  Oklahoma  have  provided  in 
their  constitutions  for  corporation  commissions  and  have  in- 
vested them  with  the  powers  of  a  court  to  enforce  their  or- 
ders by  their  own  processes.    But  even  in  these  cases,  appeals 

"  Freund,  E.,  The  Police  Power,  pp.  31-44. 

456 


THE  ENFORCEMENT  OF  STATE  LAW 

may  be  taken   from   the   orders   of  the  commission  to   the 
supreme  court  of  the  state.^* 

The  idea  that  judicial  review  is  necessary  to  safeguard  in- 
dividual rights  is  still  strongly  imbedded  in  the  laws,  and  con- 
clusiveness of  administrative  determinations  by  state  authori- 
ties is  seldom  found.  It  happens  not  infrequently,  however, 
that,  for  practical  purposes,  the  action  of  state  administrative 
authorities  may  be  final  in  the  sense  that  nothing  further  is 
actually  necessary  to  secure  the  enforcement  of  the  law.  The 
laws  regarding  the  safeguarding  of  machinery  in  factories, 
for  example,  are  usually  enforced  through  inspection  by  the 
agents  of  the  state  factory  department,  who  give  instructions 
as  to  such  changes  as  may  be  necessary  to  satisfy  the  require- 
ments of  the  law.  These  instructions  are  usually  complied 
with,  and  prosecutions  are  therefore  seldom  necessary.  The 
preventive  rather  than  punitive  character  of  state  administra- 
tive action  also  frequently  renders  resort  to  court  procedure 
unnecessary.  Moreover,  even  when  court  action  becomes 
necessary,  the  scope  of  judicial  review  may  in  various  ways 
be  narrowed  and  that  of  administrative  action  correspondingly 
broadened.  Thus,  as  in  the  case  of  the  determinations  of  the 
California  Industrial  Welfare  Commission,  judicial  review 
may  have  to  do  merely  with  the  methods  whereby  the  deter- 
mination was  reached  and  not  with  the  subject  matter  of  the 
determination,  or,  as  in  the  case  of  the  Oregon  Welfare  Com- 
mission, no  appeal  is  allowed  from  the  decision  of  the  com-  ^ 
mission  upon  any  question  of  fact.  The  scope  of  administra- 
tive action  of  a  state  board  may  also  be  virtually  widened 
through  the  provision  making  it  unnecessary  that  such  board 
should  bring  prosecutions  to  secure  compliance  with  the  law 
or  punish  violations  of  it,  but  empowering  the  board  to  enter 
and  enforce  directly  an  order,  which  becomes  the  final  deter- 
mination of  the  matter  unless  the  individual  or  corporation 


"Constitution   of   Virginia,    Sect.    156;    Constitution   of    Oklahoma, 
Art.  IX,  Sect.  19. 

457 


AMERICAN  STATE  ADMINISTRATION 

against  whom  the  order  is  entered  appeals  from  such  order 
to  the  proper  court.  In  spite,  however,  of  the  gradually  nar- 
rowing scope  of  judicial  review,  it  still  remains  true  that  ad- 
ministrative action  is  largely  preliminary  in  character,  and 
for  the  final  enforcement  of  the  law  or  for  the  imposition  of 
penalties  for  its  violation  and  even,  in  some  cases,  for  the 
holding  of  preliminary  proceedings,  resort  to  court  action  is 
still  necessary.  It  is  therefore  desirable  to  consider  the  efifi- 
ciency  of  judicial  procedure  as  the  final  factor  in  the  enforce- 
ment of  state  law.^^ 

Federal  Enforcement  of  State  Law. — Before  concluding  this 
chapter  attention  may  be  briefly  called  to  the  influence  which 
the  activities  of  the  organs  of  the  National  Government  may 
have  upon  the  enforcement  of  state  law.  Such  influence  may 
be  exerted  either  by  way  of  impeding  or  of  facilitating  the 
enforcement  of  state  law.  The  former  result  may  be  ob- 
tained, for  example,  through  application  or  petition  made  to 
the  Federal  courts  for  an  injunction  restraining  the  enforce- 
ment or  execution  of  a  state  statute,  by  restraining  the  action 
of  a  state  officer  or  administrative  board,  on  the  ground  that 
the  state  statute,  under  color  of  whose  authority  the  state 
officers  are  acting,  is  in  violation  of  some  provision  of  the 
Constitution  of  the  United  States.  If  a  temporary  injunction 
is  granted,  but  is  subsequently  dissolved  because  the  conten- 
tion of  the  petitioners  cannot  be  sustained,  the  result  is  that 
the  enforcement  of  state  law  has  been  at  least  temporarily 
impeded  through  the  action  of  the  Federal  courts. 

For  the  most  part,  however,  the  influence  of  the  activities 
of  national  organs  or  agents  is  in  the  direction  of  facilitating 
or  assisting  in  the  enforcement  of  state  law.  Such  influence 
may  be  exerted  either  directly  or  indirectly.  Thus,  Federal 
aid  may  be  brought  directly  to  the  assistance  of  a  state  in  put- 
ting down  domestic  violence  within  its  borders,  upon  applica- 
tion of  the  proper  state  authority.  Again,  a  particular  act  may 

•»  See  below,  Ch.  XVII. 

458 


THE  ENFORCEMENT  OF  STATE  LAW 

be  at  the  same  time  a  violation  of  both  state  and  Federal  law. 
Under  these  circumstances,  the  activity  of  the  Federal  author- 
ities in  preventing  or  punishing  the  commission  of  such  act 
has  the  collateral  effect  of  enforcing  the  state  law.  Thus, 
frauds  at  elections  may,  under  certain  circumstances,  be  a  vio- 
lation of  both  state  and  Federal  law.  Where  the  persons  ac- 
cused of  such  violations  have  local  political  influence,  prosecu- 
tions in  the  Federal  courts  are  more  likely  to  be  successful 
than  in  state  courts.  Similarly,  the  seizure  by  the  Federal 
authorities  of  the  books  and  papers  of  persons  accused  of 
fraudulent  use  of  the  mails  may  assist  in  the  enforcement  of 
state  "blue  sky"  and  other  laws. 

The  efforts  of  state  authorities  in  enforcing  state  law  may 
be  assisted  through  the  practical  cooperation  of  Federal  au- 
thorities and  bureaus.  Thus,  the  United  States  Public  Health 
Service  and  the  Bureau  of  Animal  Industry  at  Washington 
may  assist  the  proper  state  authorities  in  enforcing  state  laws 
for  the  protection  of  the  public  health  or  in  stamping  out  epi- 
demics. Again,  the  statistical  data,  collected  by  Federal  au- 
thorities in  the  enforcement  of  Federal  law,  may  be  utilized 
by  state  authorities  in  the  enforcement  of  state  law.  Thus, 
the  enforcement  of  the  state  laws  regarding  the  collection  of 
an  income  tax  and  the  regulation  of  railroads  may  "lean  up" 
against  the  returns  received  under  the  Federal  income  tax 
law  or  by  the  Interstate  Commerce  Commission.  In  this  con- 
nection, it  may  also  be  noted  that,  in  some  states,  the  mere 
possession  of  an  internal  revenue  receipt  from  the  United 
States  Government  is  declared  to  be  prima  facie  evidence  of 
an  offense  against  state  law.  The  so-called  "interstate  crimi- 
nals," such  as  the  operators  of  syndicated  bucket  shops  in 
different  states,  are  more  easily  reached  by  Federal  than  by 
state  authority. 

An  important  aspect  of  Federal  influence  upon  the  enforce- 
ment of  state  law  is  in  connection  with  the  use  and  sale  within 
a  state  of  articles  which  pass  through  the  channels  of  interstate 

459 


AMERICAN  STATE  ADMINISTRATION 

commerce  or  are  subject  to  Federal  internal  revenue  taxes. 
Thus,  anti-narcotic  laws,  though  found  on  the  statute  books 
of  a  majority  of  the  states,  were  comparatively  ineffective  un- 
til the  enactment  of  the  Federal  anti-narcotic  law  of  191 5> 
known  as  the  Harrison  Law.  Again,  under  the  Lacey  Game 
Law  passed  by  Congress  it  is  made  unlawful  to  transport  into 
any  state  game  which  has  been  killed  or  shipped  in  violation 
of  state  law.  Federal  power  over  the  regulation  of  interstate 
commerce  has  been  of  special  importance  in  connection  with 
the  enforcement  of  state  liquor  laws.  Such  power,  when  exer- 
cised, has  the  effect  of  setting  aside  any  conflicting  state  regu- 
lations. In  order  to  uphold  such  regulations,  Congress  has 
done  what  it  could  to  enable  the  states  to  enforce  their  own 
laws.  Thus,  under  the  Wilson  Original  Package  Act  of  1890, 
all  intoxicating  liquor  transported  into  any  state  was  made, 
upon  its  arrival,  subject  to  the  operation  of  the  laws  of  such 
state  enacted  in  the  exercise  of  its  police  powers.*"  In  1902 
the  same  rule  was  applied  to  the  transportation  of  oleomarga- 
rine, butterine,  and  other  articles  of  interstate  commerce.*^ 
The  Webb-Kenyon  Act  of  191 3  prohibited  the  shipment  from 
one  state  into  another  of  intoxicating  liquor  intended  to  be 
used  in  any  manner  in  violation  of  state  law.*^ 

Through  various  other  activities  the  Federal  authorities  may 
incidentally  assist  in  the  enforcement  of  state  law.  Thus, 
the  Federal  courts,  in  the  exercise  of  their  jurisdiction  in  bank- 
ruptcy matters,  may  assist  in  the  enforcement  of  the  state  law 
against  the  sale  of  liquor  on  Sunday.  A  number  of  saloons 
which  were  owned  and  operated  by  a  brewing  company  in  Chi- 
cago were  kept  closed  on  Sunday  in  accordance  with  state 
law,  during  the  period  of  a  receivership  which  resulted  from 
bankruptcy  proceedings  in  the  Federal  District  Court.  The 
Federal  courts  may  also  exert  some  indirect  influence  upon  the 

"26  U.  S.  Statutes  at  Large,  313. 
"32  Statutes  at  Large,  193. 
"37  Statutes  at  Large,  699. 

460 


THE  ENFORCEMENT  OF  STATE  LAW 

enforcement  of  the  state  Sunday  closing  law  by  denying  citi- 
zenship to  alien  applicants  operating  saloons  in  violation  of 
such  law,  or  by  canceling  the  citizenship  certificates  of  saloon- 
keepers who  obtained  naturalization  papers  upon  the  strength 
of  false  statements  that  they  had  not  violated  such  law. 

REFERENCES  AND  COLLATERAL  READING 

Cutler,  J.  E.    Lynch  Law. 

FiNLEY  and  Sanderson.  The  American  Executive  and  Executive 
Methods,  Chs.  IX  and  X. 

FuLD,  L,  F.    Police  Administration,  pp.  416-425. 

GiLBERTSON,  H.  S.  "Home  Rule  vs.  Nullification  in  Tax  Adminis- 
tration," in  Proceedings  of  the  Fifth  Nezv  York  State  Con- 
ference on  Taxation,  191 5,  pp.  26-32. 

GooDNOw,  F.  J.  City  Government  in  the  United  States,  pp.  223- 
226. 

.     Politics  and  Administration,  pp.  49-57,  103-105. 

Grant,  C.  B,  "The  Enforcement  of  the  Criminal  Laws  of  the 
State  in  Cities  and  Villages,"  Publications  of  the  Michigan 
Political  Science  Association,  v,   1904. 

Keedy,  E.  C.  "Extra  Legal  Force  in  the  Administration  of  the 
Criminal  Law,"  in  International  Journal  of  Ethics,  xxvi,  p. 

423. 
Low,  A,  Maurice.     The  American  People,  ii,  Ch.  XIV. 
Miller,  F.  C.     "The  State  Police,"  Proceedings  of  the  Minnesota 

Academy  of  Sciences,  iii,  pp.  96-127. 
Proceedings  of  the  Conference  of  Governors,  January,  1910,  pp. 

216-229. 
Rawles,  W.  a.     "Centralizing  Tendencies  in  the  Administration 

of  Indiana,"  Columbia  University  Studies,  xvii.  No.  i,  Ch.  VI. 
Reed,  T.  H.     Government  for  the  People,  Ch.  VIII. 
Reinsch,  p.   S.    Readings  on  American  State   Government,  pp. 

26-40;  217-222. 
Sites,  C.  M.  L.     "Centralized  Administration  of  Liquor  Laws  in 

the  American  Commonwealths,"  Columbia  University  Studies 

in  History,  Economics  and  Public  Law,  x.  No.  3. 
Waite,  E.  F.     "Police  Discretion  in  the  Enforcement  of  Law," 

Proceedings  of  the  Minnesota  Academy  of  Sciences,  iii,  pp. 

73-95- 

461 


AMERICAN  STATE  ADMINISTRATION 

Whitlock^  Brand.     On  the  Enforcement  of  Law  in  Cities. 
Whitten,    R.    H.     "Public    Administration    in    Massachusetts," 

Columbia  University  Studies,  viii,  No.  4,  Ch.  VI. 
Wines,  F.  H.  and  Koren,  John.       The  Liquor  Problem  in  Its 

Legislative  Aspects. 


CHAPTER   XVII 
THE  ADMINISTRATION   OF  JUSTICE 

Administrative  action  in  the  enforcement  of  state  law  is 
aimed  principally  at  the  prevention  of  its  violation.    To  some 
extent,  judicial  action  may  have  the  same  aim,  as  in  the  issu- 
ance of  injunctions,  binding  persons  over  to  keep  the  peace, 
and  imposing  penalties  on  some  persons  in  the  hope  of  deter- 
ring others  from  committing  the  same  offense.     In  criminal 
matters,  however,  the  function  of  the  courts  is  primarily  re- 
trospective in  character.     They  are  principally  concerned  in 
the  determination  of  guilt  and  in  the  imposition  of  punish- 
ment after  the  offense  has  been  committed.     The  exercise  of 
this  function  by  the  courts  becomes  necessary  when  the  pre- 
ventive measures  of  administrative  authorities  fail  in  keeping 
the  law  inviolate.     Where  additional  coercion  is  necessary  in 
order  to  secure  the  enforcement  of  the  law,  the  courts  may 
be  resorted  to.     For  the  final  enforcement  and  carrying  into 
effect  of  most  laws  where  opposition  is   encountered,  court 
action  is  usually  contemplated.     This  practice  is  due  in  large 
measure  to  the  prevalent  idea  that  conclusiveness  of  admin- 
istrative action  would  introduce  an  arbitrary  element  into  the 
government,  and  that,  even  if   efficiency  should  thereby  be 
sacrificed  to  some  extent,  judicial  review  is  desirable  in  order 
that  individual  rights  may  be  adequately  safeguarded.     The 
courts  thus  become  virtually  a  part  of  the  administrative  ma- 
chinery for  the  enforcement  of  state  law,  and  the  degree  of 
efficiency  attained  by  the  courts  in  the  performance  of  their 
functions  thus  becomes,  from  the  administrative  standpoint, 
an  important  question.     No  matter  how  efficient  the  police 

463 


AMERICAN  STATE  ADMINISTRATION 

may  be  in  making  arrests,  nor  how  efficient  the  administrative 
officers  of  the  state  may  be  in  the  performance  of  the  pre- 
liminary law-enforcing  functions  vested  in  them,  if  the  courts 
are  inefficient  or  if  courts  and  juries  fail  to  convict  in  the 
face  of  overwhelming  evidence,  the  law  will  in  many  cases 
not  be  enforced. 

While  few  would  go  so  far  as  to  agree  with  the  wag  who 
paraphrased  the  definition  of  a  court  as  a  place  where  justice 
is  dispensed  with,  it  is  undeniable  that  the  judicial  tribunals 
of  the  country,  and  especially  of  the  states,  have  of  late  years 
been  subjected  to  serious  criticism.  Thus  Governor  Noel  of 
Mississippi  has  declared  that  "it  has  been  said  that  laws  are 
made  'to  restrain  the  bad  and  protect  the  good.'  Even  a 
casual  review  of  the  hundreds  of  criminal  convictions  in  this 
state  reversed  for  technicalities  absolutely  foreign  to  the  ques- 
tion of  guilt  or  innocence,  creates  in  many  the  belief  that 
'laws  are  made  to  protect  the  bad  and  restrain  the  good.'  "  ^ 
Although  there  is  a  tendency  to  base  wholesale  denunciations 
of  the  courts  upon  the  magnified  importance  of  exceptional 
cases  where  justice  has  miscarried,  it  is  nevertheless  true 
that  justice  as  actually  administered  in  the  state  courts  is 
not  an  adequate  expression  of  the  popular  will.  Many  of 
the  technicalities  of  procedure,  such  as  in  the  drawing  of  in- 
dictments, seem  to  be  based  upon  an  exaggerated  notion  of 
the  importance  of  individual  rights  in  comparison  with  the 
general  welfare  and  security  of  society.  The  safeguards  for 
individual  rights  are  amplified  by  such  antiquated  constitu- 
tional provisions  as  that  which  grants  immunity  to  a  prisoner 
from  giving  testimony  in  his  own  case.  Laxity  and  feeble- 
ness in  the  enforcement  of  law  through  judicial  action  is 
further  produced  by  numerous  delays  in  procedure,  due  to  the 
taking  of  appeals   from  one  court  to  another,   the  reversal 

^Annual  Message  of  1910.  Mississippi  Senate  Journal,  1910,  p.  14. 
See  also  Reinsch,  Readings  on  American  State  Government,  pp.  173- 
199. 

464 


THE  ADMINISTRATION  OF  JUSTICE 

of  lower  courts  for  technical  errors,  the  granting  of  retrials 
and  of  numerous  continuances  for  insufficient  reasons.  The 
technical  rules  of  procedure  have  become  a  sort  of  fetish, 
the  maintenance  of  rights  under  which  is  too  frequently  con- 
sidered as  an  end  in  itself,  without  regard  to  whether  any 
substantive  right  has  been  abridged.  In  criminal  trials,  pre- 
sumptions and  benefits  of  doubt  are  almost  always  decided 
in  favor  of  the  defendant,  even  though  the  interests  and 
protection  of  society  at  large  may  be  jeopardized.  If,  in 
spite  of  this  advantage,  the  defendant  should  be  convicted, 
he  may  appeal  from  one  court  to  another,  provided  his  purse 
is  long  enough,  but  if  he  is  acquitted  any  attempt  on  the  part 
of  the  prosecution  to  take  similar  action  is  ordinarily  blocked 
by  the  constitutional  restriction  relating  to  double  jeopardy.^ 
Again,  if  there  is  so  much  local  prejudice  against  a  prisoner 
that  he  will  probably  not  be  able  to  secure  a  fair  trial,  a  change 
of  venue  may  ordinarily  be  had,  while  the  right  of  the  gov- 
ernment to  such  a  change,  when  the  sentiment  in  favor  of 
the  prisoner  makes  his  conviction  almost  impossible,  is  con- 
siderably more  restricted. 

Among  the  most  serious  difficulties,  however,  in  the  way 
of  efficiency  in  the  administration  of  punitive  justice  are 
the  requirements  of  indictment  by  a  grand  jury  and  conviction 
by  unanimous  verdict  of  a  petit  jury.  Although  the  grand 
jury  may  sometimes  be  useful  in  compelling  the  attendance  of 
witnesses  and  examining  them  under  oath,  and  in  supporting 
the  public  prosecutor  in  proceeding  against  powerful  malefac- 
tors, it  is  nevertheless  on  the  whole  an  inefficient  and  cum- 
bersome body  composed  of  untrained  and  irresponsible  lay- 
men. This  inefficiency  and  cumbrousness  is  shown  in  the 
mistakes  which  the  grand  jury  makes  in  selecting  the  cases 
to  be  tried  and  in  failing  to  examine  at  all  many  cases  in 

'  Though,  in  a  few  states,  the  government  may  appeal  when  the 
verdict  is  for  the  defendant  on  a  point  of  law  as  distinguished  from 
fact. 

465 


AMERICAN  STATE  ADMINISTRATION 

which  true  bills  should  probably  be  returned.  It  is  said  that, 
in  191 1,  the  grand  jury  in  Chicago  released  without  a  hearing 
28  per  cent  of  those  held  on  felony  charges.^  Furthermore, 
the  necessity  of  waiting  for  grand  jury  action  is  one  of  the 
most  potent  causes  of  delay  in  criminal  proceedings.  A  rem- 
edy for  this  condition  of  affairs  has  already  been  found  in 
some  states  where  crimes  are  prosecuted  by  means  of  infor- 
mations prepared  by  the  prosecuting  attorney.  This  in- 
creased power  of  the  local  prosecuting  attorney,  however, 
should  be  accompanied  by  an  increased  degree  of  central  con- 
trol over  him. 

A  more  serious  obstacle,  however,  to  efficient  law  enforce- 
ment through  court  action  is  found  in  the  system  of  trial  by 
jury.  The  right  to  trial  by  a  jury  of  the  vicinage  is  an  ancient 
and  immemorial  right,  held  in  just  veneration  by  many  per- 
sons, especially  criminal  lawyers,  but  it  has  now  practically 
outlived  its  usefulness.  The  difficulties  involved  in  the  jury 
system  arise,  first,  from  the  method  of  selecting  juries,  and, 
secondly,  from  the  extent  of  the  powers  which  they  exercise. 
Juries  are  still  selected  from  the  vicinage,  though  the  rea- 
son for  the  rule  has  long  since  disappeared.  The  original 
reason  for  this  rule  was  in  order  that  the  jury  should  be 
composed  of  men  having  personal  knowledge  of  the  facts,  but 
now  jurors  who  know  the  least  about  the  alleged  crime  are 
most  apt  to  be  selected.  As  already  noted,  the  defendant 
may,  under  certain  circumstances,  secure  a  change  of  venue, 
but  the  trial  judge  should  be  empowered  to  allow  the  same 
privilege  to  the  prosecution,  under  equally  justifiable  condi- 
tions, in  spite  of  the  objection  of  the  defendant.  From  what- 
ever locality  the  jurors  may  be  selected,  partisan  political  con- 
siderations should  not  be  allowed  to  enter  into  the  choice, 
and,  to  this  end,  the  selection  should  be  taken  out  of  the  hands 
of  the  sheriff  and  vested  in  an  impartial  commissioner  ap- 
pointed by  the  judges  or  by  central  authority.     Under  the 

*  Journal  of  Criminal  Law  and  Criminology,  iv,  p.  197. 

466 


THE  ADMINISTRATION  OF  JUSTICE 

system  in  which  the  sheriff  draws  the  grand  and  petit  juries, 
men  are  sometimes  selected  with  a  view  to  the  protection  of 
offenders  having  political  influence,  and  not  to  return  indict- 
ments or  verdicts.  In  order  to  remedy  this  state  of  affairs, 
jury  commissioners  have  been  provided  in  some  states  through 
judicial  selection  or  appointment  by  the  governor.  Thus, 
Maryland,  by  an  act  of  1904,  vests  in  jury  commissioners 
appointed  by  the  governor  the  power  previously  possessed  by 
sheriffs  to  select  jurors.  Such  acts  have  been  held  not  un- 
constitutional as  an  infringement  upon  the  prerogatives  of  the 
judiciary.* 

Even  where  partisan  political  considerations  have  been 
eliminated,  however,  it  does  not  follow  that  an  intelligent  and 
capable  jury  will  be  selected.  In  some  states  the  jury  panel 
is  drawn  by  lot  or  blind  chance,  and  there  is  no  assurance 
that  the  least  qualified  persons  in  the  county  may  not  be 
selected.  Even  where  character  and  intelligence  are  taken 
into  account  as  far  as  possible  in  selecting  the  panel,  the  actual 
trial  jury  is  apt  to  be  composed  of  persons  of  but  mediocre 
intelligence  and  standing  in  the  community.  Members  of  cer- 
tain professions  and  persons  who  would  be  seriously  injured 
financially  by  jury  service  are  frequently  exempted  from  that 
duty,  thus  eliminating  a  large  proportion  of  the  intelligent 
and  well-to-do  residents  of  the  community.  This  process  of 
elimination  is  carried  a  step  further  through  the  practice  of 
challenging  jurors,  either  peremptorily  or  for  cause.  Persons 
who  have  formed  some  opinion  of  the  case  through  reading 
newspaper  accounts  of  it  are  usually  challenged,  thus  further 
eliminating  the  most  intelligent  class.  In  this  connection  it 
may  be  noted  that  the  defendant  is  specially  favored  by  the 
provision  usually  found  whereby  a  greater  number  of  chal- 
lenges are  allowed  to  the  defense  than  to  the  prosecution. 

Not  only  the  method  of  selecting  the  jury  but  also  the  mode 

*  State  vs.  McNay,  100  Md.,  622 ;  Geiger  vs.  State,  25  Ohio  Cir.  Ct 
R.,  742. 

467 


AMERICAN  STATE  ADMINISTRATION 

of  its  operation  after  selection  places  obstacles  in  the  way  of 
the  efficient  administration  of  justice.    It  has  frequently  been 
noted  that,  in  our  state  courts  as  compared  with  the  English 
courts  or  even  with  the  Federal  courts,  the  powers  and  func- 
tions of  the  judge  are  of  less  importance  in  determining  the 
course  of  the  trial.     The  judge  should  not  be  reduced  to  a 
mere  figurehead,  for  presumably  his  greater  experience  and 
discrimination  in  weighing  evidence  than  any  jury  possesses 
should  qualify  him  to  serve  as  a  guide  and  mentor  to  the 
jury.     The  exercise  of  his   normal  powers  to  instruct  the 
jury,  to  summarize  and   comment  on   the  evidence   and  to 
direct  the  trial  in  general  should  be  of  great  service  to  the 
jury  in    reaching  a  just  verdict,   and   should   remain   unim- 
paired.    In  practice,   however,  these  normal  powers  of  the 
state  judge  are  greatly  restricted.    The  impotence  of  the  judge 
is  even  further  accentuated  by  the  provision  found  in  some 
half  a  dozen  states,  to  the  effect  that  juries  shall  be  judges 
of  the  law  as  well  as  of  the  facts  in  criminal  cases. 

A  relic  of  former  times  still  embedded  in  the  jury  system 
is  the  rule  requiring  that  the  verdict  be  unanimous.     This 
rule  not  infrequently  causes  a  trial  to  miscarry  through  a 
failure  of  the  jury  to  agree,  and  thus  necessitates  a  new  trial 
with  the  attendant  expense  and  delay.     Except,  perhaps,  in 
capital  cases,  there  would  seem  to  be  no  good  reason  why 
juries  should  not  be  allowed  to  reach  verdicts  by  a  majority 
or  three-fourths  vote,  as  is  already  allowed  in  some  states. 
The  unanimity  rule  makes   it  especially   difficult  to  enforce 
the  law  in  those  portions  of  the  state  in  which  public  senti- 
ment is  opposed  to  the  enforcement  of  the  law.    This  would 
doubtless  also  frequently  be  true  so  long  as  the  jury  system 
is    retained,   no   matter  what  the   vote   required   to   reach   a 
verdict.     "A  flagrant  example  of  the  'lawlessness'  of  jurors 
in  Illinois  and  of  the  impotency  of  judges  under  such  a  sys- 
tem to  prevent  outright  nullification  of  the  law  was  recently 
afforded  in  Chicago,  where  thirteen  different  juries,  in  the  face 

468 


THE  ADMINISTRATION  OF  JUSTICE 

of  incontrovertible  evidence,  refused  to  convict  saloon-keepers 
for  violating  the  Sunday  closing  law,  thus  presenting  an  ex- 
ample of  a  complete  breakdown  in  the  machinery  of  law' 
enforcement."  °  We  thus  have  a  system  of  "jury-made  law- 
lessness, which  recognizes  rights  that  are  forbidden  by  law 
and  denies  rights  that  are  granted  by  law."  ^ 

In  homicide  cases  many  defendants  are  acquitted  by  the 
jury  in  the  face  of  overwhelming  evidence.  It  is  well  known 
that  in  lynching  cases  it  is  practically  impossible  to  secure 
convictions  by  juries.  It  is  difficult  in  the  first  place  to  ap- 
prehend members  of  a  lynching  party,  even  though  the  affair 
be  perpetrated  in  broad  daylight  by  unmasked  men.  Coro- 
ners' juries  empaneled  to  hold  an  inquest  over  the  bodies  of 
persons  lynched,  frequently  bring  in  a  verdict  that  the  de- 
ceased came  to  his  death  at  the  hands  of  persons  unknown. 
Often  this  is  the  end  of  the  matter,  as  in  the  celebrated  Frank 
case  in  Georgia  in  191 5.  But  even  if  the  persons  who  per- 
petrated the  deed  are  known  and  can  be  apprehended,  the 
attempt  to  try  them  by  a  jury  of  the  vicinage  is  apt  to  be 
a  farce.  "The  case  of  State  versus  Hughes,  charged  with 
participating  in  a  lynching,  came  up  in  DeKalb  County,  Ten- 
nessee, in  July,  1902,  but  it  was  found  impossible  to  get  a 
jury  to  try  the  case.  The  court  exhausted  a  venire  of  three 
hundred  and  fifty,  and  found  every  man  in  the  lot  disquali- 
fied— probably  having  themselves  aided  in  the  affair."  ^  In 
1912  a  negro  who  had  killed  a  special  policeman  was  burned 
to  death  by  a  mob  at  Coatesville,  Pennsylvania.  Fourteen  of 
the  alleged  lynchers  were  indicted,  seven  of  them  were  tried, 
and  the  evidence  against  them  appeared  to  be  conclusive,  but 
all  seven  were  found  not  guilty  by  the  jury,  and  the  prose- 

°  J.  W.  Garner  in  Journal  of  Criminal  Law  and  Criminology,  ii,  pp. 
183-184  (1911). 

°  T.    J.    Kernan,   "The   Jurisprudence   of    Lawlessness,"    Green   Bag, 
xviii,  p.  588. 

'  Cutler,  J.  E.,  Lynch  Law,  p.  255. 

469 


AMERICAN  STATE  ADMINISTRATION 

cuting  attorney  thereupon  asked  for  the  dismissal  of  the  other 
seven  cases. 

The  inefficiency  of  the  jury  system  is  thus  one  of  the  most 
serious  obstacles  in  the  way  of  the  enforcement  of  state 
law.  It  is  recognized  by  public  prosecutors  that  their  success 
in  securing  the  enforcement  of  state  laws  that  may  be  ob- 
noxious to  public  sentiment  in  their  localities  depends  upon 
avoiding  jury  trials  as  far  as  possible.  One  great  cause  of 
the  failure  to  enforce  the  laws  against  disorderly  houses 
found  on  the  statute  books  of  nearly  every  state  has  been 
the  necessity  of  depending  for  convictions  upon  incompetent 
and  even  perhaps  corrupt  juries.  In  order  to  avoid  this  neces- 
sity, former  Attorney-General  Cosson  of  Iowa  drew  up  and  in 
1909  secured  the  enactment  by  the  legislature  of  that  state 
of  a  law  which  has  become  known  as  the  Iowa  Injunction 
and  Abatement  Law,  and  has  since  been  enacted  in  a  number 
of  states,  including  Nebraska,  Kansas,  Minnesota,  Wisconsin 
and  Illinois.^  This  law  avoids  the  necessity  of  a  jury  trial 
by  substituting  therefor  the  action  of  the  equity  branch  of 
the  courts.  It  virtually  attempts  to  secure  the  enforcement 
of  a  criminal  law  by  a  civil  action,  permitting  proceedings  in 
equity  in  the  name  of  the  state  to  abate  as  a  nuisance  a  build- 
ing used  as  a  disorderly  house,  and  has  been  upheld  as  con- 
stitutional.° 

The  action  to  enjoin  and  abate  the  nuisance  may  be  brought 
by  the  prosecuting  attorney  or  by  a  citizen  or  taxpayer.  It 
has  already  been  considerably  used,  particularly  in  Iowa.  Its 
effectiveness  consists  principally  in  that,  as  an  equity  proceed- 
ing, the  trial  is  before  a  judge  instead  of  a  jury,  and  in  that 
either  party  has  a  right  of  appeal  instead  of  the  defendant 
alone,  as  in  criminal  cases.  ''The  justification,"  says  ex-At- 
torney-General Cosson^  "for  doing  away  with  the  jury  system 

*  Illinois  Session  Laws,  1915,  p.  371. 

'See,   for   example,   State   vs.   Fanning,    147   N.    W.,  215;    State  vs. 
Gilbert,  147  N.  W.,  953,  relying  on  121  Iowa,  482  and  196  U.  S.,  279. 

470 


THE  ADMINISTRATION  OF  JUSTICE 

in  matters  of  this  nature,  and  seeking  the  injunctive  remedy, 
a  proceeding  in  equity,  is  bottomed  upon  the  fundamental  fact 
that  the  state  which  passes  the  law  inherently  has  and  ought 
to  have  the  power  to  enforce  that  law.  The  injunctive  rem- 
edy gives  to  the  state  this  right,  and  no  other  method  has  yet 
been  devised  which  so  effectively  gives  to  the  state  this  power 
to  enforce  its  own  statutes,  and  yet  at  the  same  time  violates 
none  of  the  fundamental  rights  of  the  defendant."  ^" 

It  remains  true,  however,  that,  in  spite  of  the  most  efficient 
methods  of  procedure  that  may  be  devised  and  enacted  into  law, 
efficiency  in  the  administration  of  punitive  justice  must  still 
depend  to  a  large  extent  upon  the  feeling  of  respect  for  the 
law  among  the  people,  and  upon  a  high  professional  standard 
of  morality  and  ability  among  the  bench  and  the  bar.  This 
subject  has  recently  been  investigated  by  an  able  committee 
for  the  National  Economic  League,  and  their  conclusion  is 
that  no  panacea  is  to  be  found  for  inefficiency  in  the  admin- 
istration of  justice.  They  recommend  "(i)  proper  training  of 
the  legal  profession  ;  (2)  giving  the  bar  greater  influence  in  the 
selection  of  judges  so  as  to  insure  expert  qualifications  in 
those  who  are  to,  perform  an  expert's  function;  (3)  unifica- 
tion of  the  judicial  system  and  more  effective  and  responsible 
control  of  judicial  and  administrative  business;  (4)  giving 
power  to  the  courts  to  make  rules  of  procedure  and  thus 
giving  the  courts  power  to  do  what  we  require  of  them;  (5) 
improvement  of  legislative  law-making  both  in  substance  and 
in  technique;  and  (6)  thorough  study  of  the  new  problems 
which  an  industrial  and  urban  society  has  raised  and  of  the 
means  of  meeting  them  with  the  jural  materials  at  hand."  " 

The  control  of  the  judiciary  over  the  administration  some- 

"  See  "The  Iowa  Injunction  and  Abatement  Law,"  U.  S.  Senate  Doc. 
No.  435,  62d  Cong.,  2d  Sess.,  1912;  also  pamphlet  with  same  title  pub- 
lished by  the  American  Vigilance  Association,  New  York. 

"  "Preliminary  Report  on  Efficiency  in  the  Administration  of  Jus- 
tice," prepared  for  the  National  Economic  League,  by  C.  W.  Eliot, 
M.  Storey,  L.  D.  Brandeis,  A.  J.  Rodenbeck,  and  Roscoe  Pound. 


AMERICAN  STATE  ADMINISTRATION 

times  operates  to  enfeeble  the  instrumentalities  provided  for 
the  enforcement  of  law.  The  power  of  the  courts  to  issue  in- 
junctions may  be  used  not  only  to  secure  the  enforcement  of 
law  by  abating  a  nuisance,  but  it  may  also  be  used  in  such 
a  way  as  virtually  to  paralyze  the  executive  arm  of  the  gov- 
ernment in  moving  against  the  violators  of  law.  Administra- 
tive boards  are  enjoined  from  slaughtering  infected  cattle. 
In  spite  of  an  anti-tipping  law,  the  head  of  the  "tipping  trust" 
continues  to  collect  tips  under  the  protection  of  an  injunc- 
tion prohibiting  hotels  and  restaurants  from  canceling  his 
contracts  with  them.  Police  officers  are  enjoined  from  raid- 
ing notorious  establishments  or  from  preventing  palpable  vio- 
lations of  the  law.  Thus,  an  internal  conflict  takes  place 
among  different  agencies  of  the  government  which  should 
work  together  in  effective  cooperation  in  law  enforcement. 
This  situation  is  merely  one  of  the  manifestations  of  the 
overemphasis  upon  law  and  individual  rights  as  contrasted 
with  administrative  efficiency  and  the  welfare  of  society. 
There  is  a  "common-law  distrust  of  administration,  which 
results  in  putting  upon  criminal  law  much  that  is  purely 
administrative,  for  which  its  methods  and  machinery  are 
ill-adapted.  The  two  rival  agencies  in  government  are  law 
and  administration.  Administration  achieves  public  secur- 
ity by  preventive  measures.  It  selects  a  hierarchy  of  officials 
to  each  of  whom  definite  work  is  assigned,  and  it  is  gov- 
erned by  ends  rather  than  rules.  It  is  personal.  Hence,  it 
is  often  arbitrary  and  is  subject  to  the  abuses  incident  to 
personal  as  contrasted  with  impersonal  or  law-regulated  ac- 
tion. But  well  exercised,  it  is  extremely  efficient;  always 
more  efficient  than  the  rival  agency  can  be.  Law,  on  the 
other  hand,  operates  by  redress  or  punishment  rather  than 
by  prevention.  It  formulates  general  rules  of  action  and 
visits  infractions  of  these  rules  with  penalties.  It  does  not 
supervise  action.  It  leaves  individuals  free  to  act,  but  im- 
poses pains  on  those  who  do  not  act  in  accordance  with  the 

472 


THE  ADMINISTRATION  OF  JUSTICE 

rules  prescribed.  It  is  impersonal,  and  safeguards  against 
ignorance,  caprice  or  corruption  of  magistrates.  But  it  is 
not  quick  enough  or  automatic  enough  to  meet  the  require- 
ments of  a  complex  social  organization."  ^^ 


REFERENCES  AND  COLLATERAL  READING 

GooDNOW,   F.  J.    Principles  of  the  Administrative  Law  of  the 

United  States,  Bk.  vi,  Div.  ii,  Ch.  III. 
Journal  of  Criminal  Law  and  Criminology,  passim. 
Pound,  Roscoe.     "The  Enforcement  of  Law,"  Green  Bag,  xx,  pp. 

401  ff. 
Storey,  Moorfield.     The  Reform  of  Legal  Procedure. 

"  Roscoe  Pound,  "Inherent  and  Acquired  Difficulties  in  the  Adminis- 
tration of  Punitive  Justice,"  Proceedings  of  the  American  Political 
Science  Association,  iv,  pp.  232-233. 


CHAPTER   XVIII 

NEWER  FUNCTIONS 

The  process  of  centralization  in  state  administration  has 
proceeded  along  two  lines.  First,  functions  formerly  exer- 
cised by  the  localities  have  been  taken  over  by  the  state,  or, 
if  left  primarily  with  the  localities,  have  been  placed  under 
the  supervision  of  the  state ;  and,  secondly,  the  state  has  as- 
sumed functions  not  previously  exercised  by  any  governmental 
authority.  Although  some  of  the  functions  previously  exer- 
cised by  the  localities  have  recently  been  assumed  by  the 
states  or  brought  under  state  supervision,  most  of  the  newer 
state  functions  fall  in  the  second  of  the  two  classes  enu- 
merated. The  assumption  by  the  states  of  the  second  class 
of  functions  is  due  in  large  measure  to  the  rapid  rise,  since 
the  Civil  War,  of  new  and  complex  industrial  conditions 
and  economic  phenomena.  Among  the  more  important  of 
these  newer  state  functions  may  be  mentioned  the  control  of 
corporations,  particularly  public  service  corporations,  the 
regulation  of  the  conditions  of  labor  in  industrial  enterprises, 
the  construction  of  public  works,  and  the  promotion  of  good 
roads,  of  agricultural  interests,  and  of  the  conservation  of 
natural  resources.  The  tendencies  toward  state  control  or 
supervision  in  respect  to  some  of  these  functions  are  de- 
scribed in  the  following  extracts : 

SUPERVISION  OF  CORPORATIONS 

"Most  of  the  states  have  provided  for  the  administrative 
control  of  corporations  by  means  of  a  number  of  separate 
offices  and  bureaus,  as  in  Illinois.     The  registration  of  new 

474 


NEWER  FUNCTIONS 

corporations  is  usually  under  the  secretary  of  state.  Every 
state  has  a  banking  and  insurance  office.  In  most  of  the 
larger  states,  there  are  separate  bank  and  insurance  com- 
missioners; but  in  a  number  of  the  states  the  functions  of 
one  or  the  other  of  these  offices  are  attached  to  one  of  the 
older  classes  of  elected  state  officers, — as  the  auditor,  secre- 
tary of  state,  or  state  treasurer. 

"Nearly  all  of  the  states  have  also  established  one  or  more 
boards  for  the  control  of  railroads  and  often  of  public  utili- 
ties. Massachusetts  had  for  a  time  three  commissions  for 
different  classes  of  public  utilities, — railroads,  lighting  plants, 
and  telephone  and  telegraph  companies.  New  York  State  has 
two  public  utility  commissions,  one  for  New  York  City  and 
the  other  for  the  remainder  of  the  state.  But  some  twenty 
states  now  give  a  large  power  of  regulation  and  control  over 
all  or  most  classes  of  public  utilities  to  a  single  commission, 
— as  the  Railroad  Commission  of  Wisconsin,  the  Public  Util- 
ity Commission  of  Illinois,  and  the  Corporation  Commission 
of  Oklahoma. 

"In  Virginia  and  North  Carolina,  the  public  control  of  cor- 
porations of  all  kinds  has  been  more  thoroughly  concentrated 
in  the  hands  of  a  single  corporation  commission  in  each  of 
these  states.  The  Virginia  Corporation  Commission  was  cre- 
ated by  the  State  Constitution  of  1902.  It  consists  of  three 
members  appointed  by  the  governor,  subject  to  confirmation 
by  the  general  assembly  in  joint  session,  for  terms  of  six 
years,  one  member  retiring  every  second  year.  The  consti- 
tution provides  that  this  commission  is  the  department  of 
government  for  the  creation,  visitation,  supervision,  regula- 
tion, and  control  of  corporations  chartered  by  or  doing  busi- 
ness in  the  state.  The  constitution  further  provides,  in  con- 
siderable detail,  for  the  authority  of  the  commission  over 
transportation  and  transmission  companies,  including  the 
power  to  prescribe  rates ;  and  for  the  administrative  pro- 
cedure before  the  commission  and  for  judicial  review  of  its 

475 


AMERICAN  STATE  ADMINISTRATION 

decisions.  By  the  constitution  and  statutes,  the  commission 
is  also  made  a  board  of  tax  assessors  for  certain  classes  of 
transportation  and  transmission  companies. 

'Tt  is  further  provided  by  the  Constitution  of  1902  that 
banking  and  other  bureaus  may  be  established  within  the 
department  of  the  state  corporation  commission.  In  1906 
a  bureau  of  insurance  was  established  under  the  supervision 
and  control  of  the  corporation  commission ;  but  the  commis- 
sioner of  insurance  is  elected  by  the  general  assembly  for 
a  term  of  four  years.  This  bureau  issues  licenses  and  cer- 
tificates of  authority  to  insurance,  guaranty,  trust  and  insur- 
ance companies ;  it  receives  reports  and  has  power  to  make 
examinations.  It  also  receives  reports  of  fires,  and  makes 
investigations  into  the  causes  of  fires.  Since  1907  the  cor- 
poration commission  has  received  financial  statements  from 
state  banking  institutions.  In  1910  the  commission  was  given 
power  to  appoint  a  bank  examiner  and  assistants,  who  make 
at  least  an  annual  inspection  of  state  banking  institutions, 
and  of  national  banks  which  are  state  depositaries."  ^ 

PUBLIC  SERVICE  COMMISSIONS  IN  THE 
UNITED  STATES 

Public  utility  commissions  are  the  instruments  used  by 
many  states  for  the  regulation  of  one  of  the  most  important 
classes  of  modern  industrial  enterprise.  The  growth  and 
extension  of  these  commissions  among  the  states  is  thus 
described : 

"State  administrative  control  of  urban  utilities  began  in 
1885  with  the  creation  of  the  Massachusetts  Board  of  Gas 
Commissioners,  changed  two  years  later  to  the  Board  of  Gas 
and  Electric  Light  Commissioners.  This  experiment  was  not 
the  result  of  widespread  popular  demand :     The  act  estab- 

*M.   H.  Robinson,  in  Report  of  the  Efficiency  and  Economy  Com- 
mittee of  Illinois,  pp.  745-746. 

476 


NEWER  FUNCTIONS 

lishing  the  commission  was  lobbied  through  the  General  Court 
by  the  Boston  Gas  Company  as  a  strategic  move  in  its  memor- 
able struggle  with  J.  Edward  Addicks.  Notwithstanding  this 
somewhat  unsavory  origin  the  Board  has  had  an  honorable 
career  of  public  usefulness  and  has  exercised  an  important 
influence,  by  way  of  example,  upon  the  development  of  urban 
utility  control  in  other  states. 

"In  addition  to  its  Light  Commissioners,  Massachusetts 
has  a  Railroad  Commission  with  some  jurisdiction  over  street 
railways,  and  a  Highway  Commission  which  in  1906  was 
given  a  Imited  control  over  telephone  companies.  But  the 
earliest  commissions  with  wide  powers  embracing  all  urban 
utilities  were  established  almost  simultaneously  by  New  York 
and  Wisconsin  in  1907. 

"In  New  York  State  a  Board  of  Railroad  Commissioners, 
a  Commission  of  Gas  and  Electricity,  an  Inspector  of  Gas 
Meters,  and  a  Rapid  Transit  Board  had  all  and  severally 
failed  to  prevent  overcapitalization  or  effectively  control  the 
rates  or  service  of  municipal  monopolies.  The  several 
boards,  in  fact,  had  proven  quite  innocuous — partly  by  legis- 
lative intent,  partly  because  of  weak  personnel.  Their  juris- 
dictions, moreover,  were  overlapping  and  to  some  extent  con- 
flicting, their  powers  feeble  and  feebly  exercised,  and  their 
machinery  at  once  cumbersome  and  inadequate.  Meanwhile 
Messrs.  Whitney,  Ryan,  Belmont,  and  other  exponents  of 
high  finance  were  making  plain  to  the  meanest  intelligence 
the  evils  of  uncontrolled  monopoly.  At  length,  under  the 
leadership  of  Governor  Hughes,  the  futile  regulative  bodies 
were  swept  away  and  in  their  stead  were  installed  two  public 
service  commissions — one  for  Greater  New  York,  and  one  for 
the  rest  of  the  state. 

"In  Wisconsin,  also,  the  legislative  conscience  was  quick- 
ened by  flagrant  abuses — especially  in  the  principal  city  of  the 
state.  Effective  control  of  public  service  corporations  was, 
moreover,  a  prominent  feature  in  the  comprehensive  program 

477 


AMERICAN  STATE  ADMINISTRATION 

of  social  reconstruction  for  which  La  Follette  and  the  State 
University  were  joint  sponsors.  A  Railroad  Commission, 
clothed  with  plenary  powers,  was  created  in  1905  over  bitter 
opposition;  and  two  years  later  its  jurisdiction  was  extended 
to  urban  monopolies  of  every  description.  The  Public  Util- 
ities Act  of  1907  was  drafted  by  Professor  John  R.  Com- 
mons of  the  State  University  of  Wisconsin  in  consultation 
with  Mr.  Halford  Erickson  and  Professor  B.  H.  Meyer  of 
the  Railroad  Commission.  The  Wisconsin  statute  concededly 
is  one  of  the  best  drawn,  as  well  as  one  of  the  most  effective 
laws  of  its  kind,  and  has  served  as  a  model  for  similar  legis- 
lation in  a  number  of  states. 

"Following  the  example  of  New  York  and  Wisconsin,  pub- 
lic service  commissions  were  established  by  Georgia  in  1907, 
by  Vermont  in  1908,  by  Maryland  and  New  Jersey  in  1910, 
by  California,  Connecticut,  Kansas,  Nevada,  New  Hamp- 
shire, Ohio,  and  Washington  in  191 1,  and  by  Rhode  Island 
in  19 1 2.  In  addition  to  these  Oklahoma,  by  the  State  Con- 
stitution of  1907,  provides  for  a  Corporation  Commission 
with  some  jurisdiction  over  public  utilities,  and  Oregon,  in 
191 1,  enacted  a  Public  Utilities  Law,  subject  to  referendum 
at  the  November,  1912,  election.  Thus  legislation  looking  to 
central  administrative  control  of  urban  utilities  has  been  en- 
acted by  seventeen  states,  including  five  New  England,  three 
Middle  Atlantic,  one  South  Atlantic,  three  North  Central, 
one  South  Central,  one  Rocky  Mountain,  and  three  Pacific 
Commonwealths.  A  legislative  movement  so  widespread  and 
of  such  recent  and  rapid  growth  challenges  the  most  serious 
consideration. 

The  Commissions 

"The  commissions,  except  in  Georgia,  Oklahoma,  and  Ore- 
gon, are  appointive,  generally  by  the  governor  and  senate ; 
and  in  most  cases  the  governor  has  also  the  power  of  re- 
moval for  cause.     The  number  of  commissioners  is  five  in 

478 


NEWER  FUNCTIONS 

California,  Georgia,  and  New  York,  and  three  in  the  other 
states.  Terms  vary  from  three  to  six  years — the  longer  period 
predominating.  Salaries  range  from  $1,700  in  Vermont  to 
$15,000  in  New  York— $4,000  to  $6,000  being  the  prevailing 
amount.  In  Georgia  only  the  chairman  is  paid,  and  in  six 
other  states  the  chairman  receives  a  higher  salary  than  his 
colleagues.  In  most  cases  commissioners  are  required  to  de- 
vote their  entire  time  to  the  work  and  are  forbidden  to  own 
any  interest,  direct  or  indirect,  in  public  service  businesses 
or  to  engage  in  any  pursuit  incompatible  with  their  office. 
"Wide  differences  appear  in  the  financial  support  accorded 
to  public  service  supervision  in  the  several  states.  The  com- 
missions of  Georgia,  Nevada,  New  Hampshire,  Rhode  Island, 
and  Vermont  are  so  hampered  by  niggardly  appropriations 
as  to  be  necessarily  ineffective.  On  the  other  hand,  the  two 
New  York  commissions  are  generously  treated  by  the  legis- 
lature: not  only  are  there  ten  commissioners  at  an  aggre- 
gate salary  of  $150,000,  but  there  is  abundant  provision  for 
expert  service  and  for  research  and  library  facilities.  The 
Wisconsin,  Washington,  and  Ohio  commissions  are  likewise 
liberally,  though  not  lavishly,  supported. 

Utilities  Included 

"Telephone  companies  are  subjected  to  commission  control 
in  each  of  the  seventeen  states,  street  railways  save  only  in 
Nevada  (where  none  exist),  gas  and  electric  companies  in  all 
but  Oklahoma,  and  water  companies  except  in  Georgia, 
Massachusetts,  New  York,  Oklahoma,  and  Vermont.  Heat- 
ing companies  are  specifically  mentioned  in  eight  of  the  acts, 
wharves  and  warehouses  in  two,  refrigerating  and  sewerage 
companies  in  one  each.  In  most  cases,  railways,  and  gen- 
erally other  carriers  as  well,  are  under  the  jurisdiction  of 
the  same  commission  as  urban  utilities.  In  California,  Geor- 
gia, Oregon,  and  Wisconsin  the  new  duties  were  added  to 
those  of  existing  railroad  commissions ;  in  Kansas  and  Ne- 

479 


AMERICAN  STATE  ADMINISTRATION 

vada  the  old  commissions  were  given  new  names  as  well  as 
broader  jurisdiction;  in  Connecticut,  New  Hampshire,  New 
Jersey,  New  York,  Ohio,  Rhode  Island,  Vermont,  and  Wash- 
ington, the  old  boards  were  abolished  and  their  powers  trans- 
ferred to  public  service  commissions ;  lastly,  in  Maryland 
and  Oklahoma  the  public  utilities  commissions  were  created 
outright.  Only  in  Massachusetts  is  the  supervision  of  public 
service  corporations  divided. 

Powers  and  Duties  of  the  Commissions 

"The  keynote  of  the  acts  under  review  is  administrative 
as  distinguished  from  legislative  or  judicial  control.  Ac- 
cordingly, it  has  been  sought  to  create  independent  tribunals 
of  great  power  and  dignity,  clothed  with  ample  discretion  in 
the  discharge  of  the  important  duties  intrusted  to  them,  and 
freed  so  far  as  possible  from  judicial  or  political  control. 
The  several  commissions  differ  much  in  the  thoroughness 
with  which  these  principles  have  been  carried  out,  and  their 
effectiveness  will  be  found  to  vary  pretty  directly  with  the 
degree  of  approximation  to  the  ideal  above  suggested. 

Inquisitorial  Powers 

"Regulation  by  commission  has  been  happily  styled  'the 
method  of  intelligence.'  Public  service  companies  have  no 
legitimate  business  secrets,  since  they  have  no  competitors 
to  fear  and  nothing  to  conceal  unless  it  be  some  practice  con- 
trary to  the  public  interest.  Extortionate  profits,  stock  water- 
ing, rebates,  discrimination,  and  political  'deals'  flourish  in 
secret  but  cannot  stand  the  light  of  public  knowledge.  Hence 
regulative  bodies,  from  the  creation  of  the  Massachusetts 
Gas  Commission  to  the  present  day,  have  found  publicity 
a  most  potent  means  of  control.  Accordingly,  all  public 
service  commissions  nowadays  are  given  authority  to  sum- 
mon witnesses,  compel  testimony,  and  enforce  the  production 
of  books  and  papers.    In  a  word,  they  are  granted  power  to 

480 


NEWER  FUNCTIONS 

make  searching  inquiry  into  any  transaction  affecting  the 
public  interest.  Annual  reports  in  great  detail  also  are  usu- 
ally required  from  public  service  corporations.  What  is 
even  more  important,  most  of  the  commissions  are  em- 
powered to  supervise  accounts  and  to  make  valuations  of  util- 
ity properties  through  their  own  staffs."  ^ 

LABOR  LEGISLATION 

"The  tendencies  of  labor  legislation  in  other  states  have 
been  toward  (i)  centralization  of  administration  in  the  hands 
of  one  bureau  or  department,  (2)  a  greater  degree  of  flexi- 
bility in  the  labor  legislation  itself,  and  (3)  a  closer  co- 
operation between  employer  and  employee  in  the  enforcement 
of  labor  laws. 

"(i)  Effective  administration  cannot  be  expected  from  a 
series  of  independent  offices,  with  conflicting  powers.  Wis- 
consin, in  191 1,  established  an  industrial  commission  and 
placed  the  administration  of  all  labor  legislation  in  the  hands 
of  this  commission.  Ohio,  in  191 3,  adopted  a  similar  plan. 
New  York  and  Pennsylvania  have  to  a  large  extent  cen- 
tralized the  administration  of  labor  legislation. 

"(2)  The  policy  in  this  country  until  recently  has  been 
to  enact  statutes  which  attempt  to  cover  in  detail  every 
contingency  that  may  arise  in  connection  with  the  guarding 
of  machinery  etc.  It  is  impossible  to  cover  all  such  details 
in  a  statute,  and  to  change  statutory  provisions  quickly  so 
as  to  adjust  them  to  changing  industrial  conditions.  The 
situation  is  much  the  same  as  that  which  prevailed  some 
years  ago  with  reference  to  the  fixing  of  railroad  rates.  Leg- 
islatures have  now  realized  that  it  is  impossible  to  regulate 
rates  in  detail  by  statute,  and  have  committed  this  task  to 
permanent  commissions,  laying  down  in  the  statute  the  gen- 
eral principles  under  which  the  commission  should  act. 


*  E.  H.  Downey,  in  Iowa  Applied  History  Series,  i,  pp.  144-153. 

481 


AMERICAN  STATE  ADMINISTRATION 

"The  New  York  State  Factory  Investigating  Commission 
said  in  its  report  in  1913:  'The  labor  law  is  framed  on 
what  we  believe  to  be  a  mistaken  theory,  that  the  require- 
ments for  the  protection  of  the  health  and  safety  of  workers 
should  all  be  expressed  within  the  four  corners  of  the  statute 
itself.  The  attempt  to  carry  out  this  theory  has  led  to  the 
enactment  of  provisions  so  specific  and  rigid  in  their  require- 
ments as  to  make  their  enforcement,  in  many  cases,  unjust 
or  even  impossible.  They  fail  to  take  into  account  the  vary- 
ing conditions  in  different  industries.  In  some  instances  where 
the  impossibility  of  setting  a  rigid  standard  for  all  cases 
was  manifest,  the  provisions  of  the  law  were  made  so  vague 
and  indefinite  that  their  meaning  or  application  could  not  be 
determined  at  all,  or  had  to  depend  upon  the  exercise  of  an 
administrative  discretion,  a  one-man  discretion,  so  arbitrary 
in  character  and  so  calculated  to  work  injustice,  that  it  was 
either  not  exercised  at  all,  or,  when  exercised,  became  a  natu- 
ral subject  of  distrust  on  the  part  of  the  courts.  We  believe 
that  the  only  way  of  obtaining  a  labor  law  which  can  be  en- 
forced, is  to  abandon  the  theory  underlying  the  labor  law 
as  it  now  stands ;  namely,  that  it  is  possible  in  any  statute 
to  provide  specifically  the  measures  to  be  taken  for  the  pro- 
tection of  the  lives,  health,  and  safety  of  workers  in  each 
industry  and  under  all  conditions.  We  are  of  opinion  that  the 
legislature  should  make  broad  and  general  requirements  for 
safety  and  sanitation,  setting  forth  where  practicable  mini- 
mum requirements,  and  delegating  to  some  responsible  au- 
thority the  power  to  make  special  rules  and  regulations  to 
carry  the  provisions  of  the  statute  into  effect  in  the  different 
industries    and   under   varying   conditions. 

"  'These  rules  and  regulations  should  be  collected  in  an  in- 
dustrial code  that  could  be  enlarged  or  changed  with  com- 
parative ease  from  time  to  time  as  occasion  might  require. 
Such  a  principle  is  approved  by  all  those  who  have  given 
time  or  study  to  this  important  subject.' 

482 


NEWER  FUNCTIONS  ' 

"In  1913  the  New  York  legislature  put  this  recommenda- 
tion into  effect ;  and  the  New  York  example  was  immediately 
copied  by  Pennsylvania.  Massachusetts  and  California,  in 
1913,  adopted  a  similar  principle.  Wisconsin,  through  her 
industrial  commission  law  in  191 1  (largely  copied  by  Ohio 
in  1913),  set  the  standard  for  legislation  of  this  type.  Rules 
for  industry  were  to  be  made  by  the  industrial  commission 
after  a  hearing  and  were  to  be  reviewable  on  appeal  to  the 
courts  under  certain  conditions.  There  is  no  arbitrary  power 
and  every  legitimate  interest  is  properly  safeguarded. 

"Several  plans  of  organization  are  possible,  if  the  labor 
bureaus  are  to  be  consolidated,  and  if  a  wide  power  to  make 
rules  and  regulations  is  vested  in  the  consolidated  depart- 
ment. Upon  this  subject  the  following  quotation  from  the 
report  of  the  New  York  commission  is  of  interest: 

"  'To  give  one  man,  namely  the  Commissioner  of  Labor, 
the  power  to  make  rules  and  regulations,  would  be  entirely 
out  of  the  question.  This  power  is  too  great  to  intrust 
safely  to  any  one  individual.  Two  other  methods  were  sug- 
gested: (i)  to  create  a  commission  at  the  head  of  the  De- 
partment of  Labor  in  place  of  the  present  single  commis- 
sioner, with  power  to  make  rules  and  regulations  and  to 
enforce  them,  and  (2)  to  create  a  board  within  the  Depart- 
ment of  Labor  to  make  rules  and  regulations,  and  to  leave 
the  Commissioner  of  Labor  at  the  head  of  the  depart- 
ment as  at  present,  with  full  power  to  enforce  the  provi- 
sions of  the  statute  and  the  rules  and  regulations  adopted  by 
the  board,  and  with  full  responsibility  for  their  enforce- 
ment. 

"  'The  Commission  has  carefully  considered  the  advantages 
and  disadvantages  of  each  plan.  We  have  found  that  there 
are  advantages  and  disadvantages  in  each,  but  after  careful 
study  we  have  decided  that  the  second  alternative  is  the  one 
likely  to  produce  better  results  in  the  state.  In  reaching  that 
conclusion  we  were  guided  by  the  following  principles : 

483 


AMERICAN  STATE  ADMINISTRATION 


(( (. 


'i.  Responsibility  for  enforcement  of  law  must  be  defi- 
nitely located. 

"  '2.     Administrative  work  can  best  be  done  by  one  man. 

"  *3.  Questions  involving  discretion  and  requiring  delib- 
eration are  best  decided  by  a  body  of  men. 

"  'The  plan  we  propose  has  the  deliberative  advantages  of 
commission  government,  and  the  administrative  advantages 
of  a  single  head.  The  formation  of  a  board  to  make,  with 
due  deliberation,  regulations  that  shall  carry  into  effect  the 
intent  and  purposes  of  the  law,  will  secure  for  the  department 
all  the  benefits  of  a  commission;  and  the  retention  at  the 
head  of  the  department,  of  a  single  commissioner  to  enforce 
the  law  and  the  regulations  adopted  thereunder,  will  prevent 
any  shifting  of  responsibility. 

"  'The  question  has  arisen,  whether  this  board  shall  be 
merely  advisory  and  its  conclusions  subject  to  veto  by  the 
Commissioner  of  Labor.  We  believe,  however,  that  such 
veto  power  would  not  produce  good  results.  Nevertheless, 
the  Commissioner  of  Labor  should  not  be  placed  in  a  sub- 
ordinate capacity,  but  should  be  chairman  of  this  board  and 
thus  have  an  important  voice  in  framing  the  rules  and  regu- 
lations upon  which  the  successful  administration  of  his  de- 
partment so  largely  depends.' 

"There  are  four  possible  plans  of  organization:  (i)  The 
Wisconsin  plan,  where  the  executive  administration,  as  well 
as  the  framing  of  rules,  is  placed  in  the  hands  of  a  com- 
mission of  three  members.  This  plan  is  open  to  the  ob- 
jection that  it  scatters  administrative  responsibility  for  the 
work  of  the  department.  (2)  The  plan  of  creating  a  board 
by  associating  with  the  head  of  the  department  of  labor 
several  advisory  members  who  do  not  give  their  whole  time 
to  the  work  of  the  board.  Advisory  boards,  performing  only 
occasional  services,  have  not  in  general  proven  satisfactory. 
(3)  The  plan  of  creating  a  board  by  associating  the  chiefs 
of  the  several  labor  bureaus  with  the  head  of  the  labor  de- 

484 


NEWER  FUNCTIONS 

partment.  This  plan  has  advantages,  but  is  open  to  the 
objection  that  it  confers  independent  advisory  and  discre- 
tionary functions  upon  officers  who  are  administratively  sub- 
ordinate to  the  head  of  the  labor  department.  (4)  The  plan 
of  associating  with  the  head  of  the  department  two  deputies, 
who  shouFd  be  free  from  administrative  duties  but  devote 
their  whole  time  to  the  work  of  the  department,  the  three 
to  act  as  a  board  for  matters  requiring  discretionary  action. 
It  may  be  objected  to  this  plan  that  it  proposes  the  appoint- 
ment of  two  important  officers  who  would  have  very  little 
to  do.  Yet  these  deputies  would  have  enough  to  do  if  they 
(a)  acted  as  part  of  a  board  in  compensation  cases,  in  pass- 
ing upon  matters  affecting  private  employment  agencies,  and 
in  arbitration  matters  (b)  conducted  investigations  and  hear- 
ings upon  matters  affecting  labor;  and  acted  in  obtaining  co- 
operation by  employers  and  employees  in  drawing  up  rules 
applicable  to  particular  industries;  (c)  acted  as  a  part  of 
the  board  in  adopting  rules  and  regulations.  A  more  serious 
objection  is  the  one  that  friction  may  result  from  having 
two  officers  exercising  independent  powers  by  the  side  of  the 
head  of  the  department  of  labor;  yet  the  possibility  of  fric- 
tion is  hardly  as  great  as  under  the  Wisconsin  plan. 

"In  order  to  control  more  effectively  power  granted  to  a 
commission  to  make  rules,  the  General  Assembly  in  con- 
ferring such  power  may  properly  (i)  fix  in  important  mat- 
ters certain  maximum  or  minimum  standards  limiting  the 
authority  of  the  commission;  (2)  require  that  rules  made 
by  the  commission  be  submitted  at  the  next  succeeding  session 
of  the  General  Assembly.  Rules  thought  improper  by  the 
General  Assembly  could  then  be  repealed. 

"(3)  The  enforcement  of  safeguards  in  industry  must  de- 
pend primarily  upon  the  employer  and  employee  rather 
than  upon  state  inspection.  An  inspection  force,  no  matter 
how  large,  cannot  enforce  in  detail  all  requirements  now  im- 
posed by  labor  legislation  in  Illinois.     Under  the  Wisconsin 

485 


AMERICAN  STATE  ADMINISTRATION 

Industrial  Commission  law,  an  effective  administration  has 
been  made  possible  by  the  fact  that  committees  of  employ- 
ers and  employees  have  been  appointed  for  each  industry  to 
work  out  safety  rules  for  that  industry.  The  framing  of 
such  rules  has  been  in  itself  an  education  regarding  the  need 
for  the  rules  framed.  But  such  cooperation  between  em- 
ployer and  employee  cannot  be  obtained  without  some  degree 
of  centralization  in  the  enforcement  of  labor  laws,  and  some 
flexibility  in  the  rules  to  be  framed."  ' 

THE  PROMOTION  OF  AGRICULTURE 

"In  twenty-two  states  there  are  organized  agricultural  de- 
partments, in  which  are  united  a  considerable  number  of 
services.  In  this  class  are  New  York,  Pennsylvania,  Ohio, 
Maine,  New  Hampshire,  North  Dakota,  Montana,  Idaho, 
Washington  and  nearly  all  of  the  Southern  States.*  In  most 
of  these  states  the  department  is  under  the  direction  and  con- 
trol of  a  single  salaried  official  usually  styled  the  Commis- 
sioner of  Agriculture.  In  many  of  the  Southern  States,  and 
in  North  Dakota,  the  commissioner  is  an  elective  state  offi- 
cer, in  some  cases  provided  for  in  the  state  constitution.  In 
the  other  states  this  officer  is  appointed  by  the  governor. 
Some  of  these  states  with  well  organized  departments  of 
agriculture  have,  in  addition  to  the  chief  executive,  a  board 
of  agriculture,  usually  small  in  number  and  appointed  by  the 
governor.  Such  boards  are  provided  in  Pennsylvania,  New 
Hampshire,  Virginia,  North  Carolina,  Kentucky,  Alabama  and 

'  W.  F.  Dodd,  in  Report  of  the  Efficiency  and  Economy  Committee 
of  Illinois,  pp.  563-567. 

*  In  most  of  these  states  the  department  title  and  functions  include 
more  than  agricultural  interests.  In  Alabama  it  is  a  department  of 
agriculture  and  industries;  in  Mississippi,  a  department  of  agriculture 
and  commerce;  and  in  Arkansas  a  department  of  mines,  manufactures 
and  agriculture.  In  Iowa  there  is  a  so-called  "department"  of  agri- 
culture under  a  state  board  of  agriculture,  organized  as  in  Illinois  and 
with  limited  powers. 

486 


NEWER  FUNCTIONS 

Louisiana.  In  Ohio  there  is  a  comprehensive  department 
of  agriculture  under  the  control  of  an  agricultural  commis- 
sion of  four  members,  three  appointed  by  the  governor  and 
one  by  the  trustees  of  Ohio  State  University,  at  salaries  of 
$5,000,  with  extensive  powers.  In  Oklahoma  there  is  a  state 
board  of  agriculture  of  eleven  members,  the  president  of 
which  is  an  elective  official. 

"In  the  larger  number  of  states,  agricultural  interests  are 
looked  after,  as  in  Illinois,  by  a  number  of  different  authori- 
ties, organized  in  different  ways  and  with  different  relations 
to  the  state  government.  Most  of  these  states  have  a  state 
board  of  agriculture,  which  is  usually  a  large  body  of  from 
ten  to  more  than  forty  members,  which  is  neither  selected  by 
nor  responsible  to  the  governor  or  other  state  officers.  In 
a  few  states  (Delaware,  West  Virginia,  South  Dakota  and 
Oregon)  there  are  small  boards  of  agriculture  (with  from 
three  to  seven  members)  appointed  by  the  governor,  with 
limited  powers.  There  are  no  state  boards  of  agriculture  in 
Wyoming,  Utah,  Nevada,  New  Mexico  or  Arizona.  But  in 
all  of  the  states  of  this  group  there  are  other  officials  and 
boards  exercising  functions  relating  to  agricultural  affairs, 
such  as  live  stock,  dairy,  fish  and  game  and  forestry  boards 
or  commissioners.  The  state  boards  of  agriculture  are  usu- 
ally limited  to  the  management  of  the  state  fair,  the  collec- 
tion of  statistics,  the  publication  of  bulletins  and  crop  reports, 
and  sometimes  supervision  of  farmers'  institutes,  the  inspec- 
tion of  commercial  fertilizers  and  some  similar  matters.  In 
general,  their  functions  are  more  of  an  educational  char- 
acter than  governmental,  since  they  are  rarely  charged  with 
the  enforcement  of  legislation  relating  to  agriculture  and 
other   related   industries. 

"The  chief  advantages  claimed  for  the  board  system  are 
that  it  affords  a  means  of  securing  the  collaboration  of  a 
number  of  persons  who  are  actively  engaged  in  the  pursuits 
of  agriculture  and  whose  combined  experience  and  knowledge 

487 


AMERICAN  STATE  ADMINISTRATION 

may  therefore  be  presumed  to  be  much  greater  than  that 
of  a  single  commissioner.  The  chief  disadvantage,  however, 
is  that  owing  to  the  large  size  of  most  state  boards  of  agri- 
culture they  are  cumbersome  and  unwieldy  and  therefore 
not  well  adapted  for  efficient  administration.  Where  there 
are  twenty  (20)  or  thirty  (30)  members  residing  in  different 
parts  of  the  state  they  can  be  assembled  only  at  rare  inter- 
vals and  then  at  more  or  less  inconvenience  and  expense. 
Finally,  boards  as  administrative  bodies  lack  responsibility, 
since  it  is  obviously  difficult  to  fix  definitely  and  effectively 
responsibility    for   their  acts   upon   any   member. 

"It  should  be  said,  however,  that  the  difference  between 
the  single  commissioner  system  and  the  board  system  is  some- 
times more  apparent  than  real.  In  all  the  states  which  have 
a  state  board  of  agriculture,  the  president  or  the  secretary 
— usually  the  secretary — is  generally  a  paid  official  who  main- 
tains an  office  in  the  state  capitol  and  devotes  most  of  his 
time  to  the  discharge  of  his  official  duties.  In  most  states 
he  performs  various  duties  which,  in  those  states  having 
departments  of  agriculture,  are  performed  by  the  commis- 
sioner. His  office,  therefore,  is  often  not  very  unlike  a  de- 
partment and  is  in  fact  so  designated  by  law  in  several  states 
(of  which  Illinois  is  one)  where  there  are  state  boards  of 
agriculture.  But  in  such  cases  the  secretary  of  the  state 
board  of  agriculture  is  subject  to  the  control  and  supervision 
of  the  board,  whereas  a  commissioner  of  agriculture  is  di- 
rectly responsible  for  the  conduct  of  his  office. 

"It  is  not  to  be  understood  that  there  are  no  other  authori- 
ties in  these  states  which  have  departments  of  agriculture. 
In  a  majority  of  states  the  control  of  the  live  stock  interests 
is  under  a  separate  board  or  commissioner,  entirely  inde- 
pendent of  the  commissioner  of  agriculture  or  the  state  board 
of  agriculture,  as  the  case  may  be.  So  with  regard  to  the 
protection  of  game  and  fish,  the  control  of  the  dairy  indus- 
tries, food  inspection,  the  forestry  service  etc.     In  most  states 

488 


NEWER  FUNCTIONS 

the  board  of  agriculture,  or  the  department  of  agriculture,  is 
therefore  but  one  of  a  group  of  independent  and  coordinate 
authorities  among  which  is  distributed  the  administration  of 
a  number  of  related  services. 

"In  many  states  the  number  of  such  boards  or  commis- 
sions has  been  multiplied  to  such  an  extent  as  to  cause  much 
unnecessary  confusion,  overlapping  and  duplication.  In 
Utah  and  Washington,  for  example,  practically  each  service 
relating  to  agriculture  and  other  kindred  industries  has  been 
placed  under  a  separate  board  or  commission,  and  to  a 
somewhat  less  degree  this  is  the  situation  in  Illinois  and  many 
other  states. 

"It  is  the  opinion  of  students  of  administrative  organiza- 
tion that  the  board  system  has  been  much  overdone  in  most 
of  the  states,  and  that  considerations  of  economy,  efficiency 
and  responsibility  require  that  the  further  multiplication  of 
boards  for  administrative  purposes  should  be  checked.  In 
recent  years  there  have  been  signs  of  a  reaction  against  this 
tendency.  New  York,  Pennsylvania,  Ohio,  Washington,  and 
to  a  less  extent  Florida  and  Georgia  have  gone  farthest  in 
the  direction  of  consolidating  in  a  single  department  the 
various  agricultural  services,  which  are  more  or  less  related 
in  character,  with  a  view  to  introducing  simplicity,  securing 
greater  economy  and  efficiency  and  avoiding  unnecessary  over- 
lapping and  duplication.  In  1913  such  consolidated  depart- 
ments were  established  in  Ohio,  New  Hampshire  and  Wash- 
ington. 

"The  New  York  system  represents  the  type  of  organization 
most  in  harmony  with  modern  principles  of  administrative 
organization,  and  the  one  toward  which  the  most  progressive 
states  are  gradually  tending.  The  commissioner  of  agricul- 
ture in  that  state  has  been  vested  with  large  powers  and  in 
the  department  of  which  he  is  the  head  have  been  consoli- 
dated a  large  group  of  important  services  organized  into  ten 
bureaus,    such    as    the    supervision    of    dairying   and    cheese 

489 


AMERICAN  STATE  ADMINISTRATION 

making,  the  administration  of  the  laws  relating  to  the  live 
stock  industry,  including  the  control  of  contagious  diseases 
among  domestic  animals,  the  bee  keeping  industry,  the  en- 
forcement of  pure  food  laws  and  laws  relating  to  the  sale  of 
certain  articles  like  Paris  green,  turpentine,  linseed  oil  etc.,  the 
laws  for  the  protection  of  trees,  shrubs  and  plants  against 
disease  and  pests,  the  laws  governing  the  inspection  and  sale 
of  commercial  fertilizers  and  food  stuffs,  the  inspection  and 
condemnation  of  meat,  and  other  services  which  in  most  of 
the  states  are  under  the  administration  of  separate  boards  or 
offices. 

"So  too  in  Pennsylvania  the  department  of  agriculture  is 
charged  with  the  promotion  of  agriculture,  horticulture,  for- 
estry, live  stock  and  poultry  interests,  the  analysis  of  fer- 
tilizers, the  protection  of  forests,  the  enforcement  of  laws 
relating  to  diseases  of  animals,  the  prevention  of  fraud  in  the 
sale  of  foods,  and  supervision  over  the  Live  Stock  Sanitary 
Board,  the  State  Veterinarian,  the  Economic  Zoologist  and 
the  Dairy  and  Food  Commissioner. 

"Even  more  comprehensive  are  the  powers  of  the  recently 
established  Agricultural  Commission  of  Ohio.  These  include 
the  powers  formerly  exercised  by  the  Secretary  and  State 
Board  of  Agriculture,  the  Board  of  Live  Stock  Commission- 
ers, the  Board  of  Control  of  the  State  Experiment  Station, 
the  State  Dairy  and  Food  Commissioner,  the  Fish  and  Game" 
Commissioner,  the  State  Board  of  Veterinary  Examiners, 
and  some  powers  of  the  State  Board  of  Pharmacy.  The 
commission  has  authority  to  establish  bureaus,  and  also  has 
power  to  conduct  investigations,  inspections  and  hearings  and 
to  make  rules  and  regulations  relating  thereto. 

"The  consolidated  department  of  agriculture  under  a  single 
official,  with  subordinate  bureaus  and  divisions,  is  the  system 
of  organization  by  which  the  Government  of  the  United  States 
administers  the  acts  of  Congress  for  the  promotion  of  agricul- 
ture.   This  also  is  the  usual  method  of  administration  for  agri- 

490 


NEWER  FUNCTIONS 

cultural  as  for  other  interests  in  Canada  and  the  other  coun- 
tries in  America  and  Europe."  ^ 

THE  PROMOTION  OF  GOOD  ROADS 

"In  1891  the  state  of  New  Jersey  inaugurated  what  has 
proven  to  be  a  new  general  movement  for  building  improved 
roads  in  the  United  States,  with  the  aid  of  state  appropria- 
tions and  more  centralized  methods  of  administration.  The 
New  Jersey  Act  of  this  year  made  an  annual  appropriation 
of  $75,000,  to  be  used  in  road  work,  under  the  supervision 
of  the  state  board  of  agriculture.  Two  years  later  (1893) 
a  Massachusetts  law  created  a  state  highway  commission, 
and  provided  for  the  establishment  and  construction  of  state 
roads.  In  the  same  year  an  Indiana  law  provided  for  the 
building  of  free  gravel  roads  by  the  county  authorities ;  and 
laws  authorizing  county  roads  were  also  passed  in  New  York, 
New  Jersey,  Michigan,  Missouri,  Oregon  and  Washington. 
In  1895  Connecticut  and  California  enacted  new  road  laws, 
for  state  roads  to  be  built  under  the  supervision  of  state 
highway  officials.  In  1898  two  important  state  aid  laws  were 
enacted  in  New  York  state ;  and  Maryland  established  a  high- 
way division  of  the  state  geological  survey  to  investigate 
road  conditions  and  methods  of  improvement. 

"Since  1900  new  road  laws  have  been  passed  in  most  of 
the  other  states,  and  additional  legislation  in  a  number  of 
the  states  already  mentioned,  establishing  or  extending  the 
powers  of  state  highway  officials  and  making  or  increasing 
state  appropriations  for  road  purposes ;  while  in  New  York, 
Cahfornia  and  several  other  states  large  issues  of  state  bonds 
have  been  authorized  for  road  purposes.  This  recent  legis- 
lation presents  a  complex  variety  of  provisions  exhibiting  a 
wide  range  of  differences  in  the  forms  and  amount  of  state 

*J.  W.  Garner,  in  Report  of  the  Efficiency  and  Economy  Committee 
of  Illinois,  pp.  623-625. 


AMERICAN  STATE  ADMINISTRATION 

aid  and  in  the  organization   and  powers  of  state  and  local 
officials. 

"Forty  states  have  now  provided  for  a  state  highway  de- 
partment, a  state  highway  commissioner  or  board,  a  state 
engineer,  or  some  other  official  or  board  with  some  power 
and  authority  in  highway  matters.  The  only  exceptions  are 
Indiana,  West  Virginia,  South  Carolina,  Georgia,  Florida, 
Mississippi,  Arkansas  and  Texas.  All  of  these  are  in  the 
South  except  Indiana,  where  a  large  amount  of  road  improve- 
ment has  been  carried  out  by  the  boards  of  county  com- 
missioners. 

"The  organization  of  these  state  highway  offices  show  a 
Avide  variety ;  and  hardly  two  states  have  precisely  the  same 
system  of  state  highway  administration.  A  number  of  states 
have  a  single  state  highway  commissioner  or  engineer,  usu- 
ally appointed  by  the  governor  (in  most  cases  with  the  con- 
sent of  the  senate),  at  the  head  of  this  service.  This  arrange- 
ment is  established  in  Maine,  Vermont,  Connecticut,  Penn- 
sylvania, Ohio,  Michigan,  Kentucky  and  Oklahoma.  More 
often  a  board  or  commission  of  three  or  more  members  is 
appointed  by  the  governor  and  senate ;  and  this  board  appoints 
an  engineer.  This  plan  is  adopted  in  Massachusetts,  Connecti- 
cut, Maryland,  Tennessee,  Illinois,  Minnesota  and  Colorado. 

"In  other  states  there  is  a  board  composed  in  whole  or 
in  part  of  ^;ir  officio  members,  as  in  New  York,  New  Jersey, 
Virginia,  North  Carolina,  Alabama,  Wisconsin,  Idaho,  Utah, 
New  Mexico,  California  and  Washington.  Thus  in  New 
York,  the  state  commission  of  highways  is  composed  of  the 
state  superintendent  of  highways,  the  state  engineer  and  sur- 
veyor and  the  state  superintendent  of  public  works.  In  New 
Jersey  the  state  highway  commission  consists  of  the  governor, 
president  of  the  senate,  speaker  of  the  house  and  commis- 
sioner of  public  roads.  In  Missouri  the  state  highway  engi- 
neer is  appointed  by  the  state  board  of  agriculture ;  and  in 
Iowa  and  Kansas  the  state  highway  engineers  are  appointed 

492 


NEWER  FUNCTIONS 

by  the  state  agricultural  colleges.  In  North  Carolina  the 
office  is  connected  with  the  state  geological  and  economic  sur- 
vey ;  and  in  Louisiana  the  highway  department  is  one  division 
of  the  state  board  of  engineers. 

"The  powers  and  jurisdiction  of  these  state  highway  of- 
fices cover  a  wide  range  of  variation,  and  in  no  two  states 
is  the  scope  of  activity  precisely  the  same.  In  some  states 
the  highway  bureaus  simply  collect  and  distribute  statistical 
data  and  other  information  in  regard  to  road  improvement 
and  administration.  Other  powers  added  in  various  states 
include  the  direction  of  experiments  in  road  improvement,  the 
preparation  of  plans  and  specifications  for  bridges  and  perma- 
nent roads,  the  supervision  over  the  construction  of  local 
roads  and  bridges  (built  by  counties  and  in  New  York  also 
by  townships)  aided  by  state  funds,  and  the  construction 
and  maintenance  of  a  state  system  of  main  roads.  In  a  gen- 
eral way,  the  authority  of  the  state  highway  officials  varies 
with  the  amount  of  state  aid. 

"In  about  twenty  states  the  state  highway  officials  not  only 
collect  and  distribute  information  and  prepare  plans  and  speci- 
fications, but  also  exercise  a  substantial  amount  of  super- 
vision or  direct  control  over  the  construction  of  improved 
roads  and  bridges  aided  to  some  extent  by  state  funds.  These 
states  include :  Maine,  New  Hampshire,  Massachusetts,  Con- 
necticut, New  York,  New  Jersey,  Pennsylvania  in  the  north- 
east ;  Virginia,  West  Virginia,  Alabama  and  Louisiana  in  the 
south;  Ohio,  Michigan,  Wisconsin  and  to  some  extent  Illi- 
nois in  the  middle  west;  and  Colorado,  Idaho  and  California 
in  the  farther  west.  The  state  departments  with  the  most 
power  are  in  those  states  where  the  state  appropriations 
have  been  the  most  important,  viz :  Massachusetts,  Connec- 
ticut, New  York,  New  Jersey,  Pennsylvania  and  California. 

"The  Massachusetts  Highway  Commission,  of  three  sal- 
aried members,  appointed  by  the  governor  and  council,  collects 
and  publishes  statistics  as  to  roads,  makes  road  maps,  gives 

493 


AMERICAN  STATE  ADMINISTRATION 

advice  to  local  road  authorities,  and  has  full  control  over  the 
system  of  state  highways — including  their  location,  plans  and 
specifications,  the  acceptance  of  bids  and  the  work  of  con- 
struction. The  commission  also  registers  motor  vehicles, 
licenses  operators  and  makes  regulations  for  their  operation ; 
and  further  has  general  supervision  over  telephone  and  tele- 
graph companies. 

"The  New  York  Highway  Commission  consists  of  the  state 
superintendent  of  highways  and  the  state  superintendent  of 
public  works,  appointed  by  the  governor  and  senate,  and  the 
state  engineer  and  surveyor,  an  elective  officer.  This  com- 
mission has  an  extensive  scope  of  authority.  It  compiles  and 
publishes  highway  statistics,  investigates  methods  of  road  con- 
struction and  maintenance,  and  holds  annual  public  meetings 
in  each  county  or  district  in  the  state;  it  has  general  super- 
vision over  all  highways  and  bridges  constructed  or  main- 
tained, in  whole  or  in  part,  by  the  aid  of  state  funds;  it  pre- 
scribes rules  relating  to  the  duties  of  division  engineers,  dis- 
trict, county  or  town  superintendents  of  highways  in  respect 
to  state  and  county  roads ;  it  aids  local  road  officials  in  es- 
tablishing grades  and  drainage  systems ;  it  prepares  plans, 
specifications  and  estimates  on  the  request  of  local  officials; 
and  it  approves  and  determines  the  final  plans  and  specifica- 
tions for  state  and  county  highways  and  lets  contracts  for 
such  improvements."  * 

REFERENCES  AND  COLLATERAL  READING 

American  Labor  Legislation  Review,  passim. 

Commons,  J.  R.  and  Andrews,  J.  B.  Principles  of  Labor  Legis- 
lation. 

EsHLEMAN,  J.  H.  "State  vs.  Municipal  Regulation  of  Public  Utili- 
ties," National  Municipal  Review,  January,  1913. 

*  J.  A.  Fairlie,  in  "Report  of  the  Joint  Legislative  Committee  of  the 
47th  General  Assembly  of  Illinois,  Appointed  to  Consider  the  Laws 
Pertaining  to  County  and  Township  Organization  and  Those  Relating 
to  Roads,  Highways,  and  Bridges,"  i.  pp.  53-57. 

494 


NEWER  FUNCTIONS 

King,  C.  L.,  ed.    The  Regulation  of  Municipal  Utilities. 

"Local  and  State  Regulation  of  Municipal  Utilities,"  Annals  of  the 

American  Academy  of  Political  and  Social  Science,  Ivii,  pp. 

1 1 8-1 88. 
Meyer,  B.  H.     "Central  Utilities  Commissions  and  Home  Rule," 

American  Political  Science  Review,  v,  pp.  374-393. 
Proceedings  of  the  American  Association  for  Labor  Legislation. 
Reinsch,  p.  S.    Readings  on  American  State  Government,  pp. 

240-292. 
Reports  of  State  Highway  Commissions. 
Reports  of  State  Public  Service  Commissions. 
"State  Aid  to  Agriculture,"  Transactions  of  the  Commonwealth 

Club  of  California,  November,  191 1. 
"State  Regulation  of  Public  Utilities,"  Annals  of  the  American 

Academy  of  Political  and  Social  Science,  May,  1914. 
United  States  Department  of  Labor,  Reports  and  Bulletins. 
United  States  Good  Roads  Year  Book. 
WiLLOUGHBY,   W.    F.     "The   Philosophy   of   Labor    Legislation," 

American  Political  Science  Review,  viii,  pp.  14-24. 
Wyman,  B.     Control  of  the  Market,  Chs.  I-HL 
Young,  J.  T.     The  New  American  Government  and  Its   Work, 

Chs.  XVni  and  XIX,  pp.  442-444. 


PART  IV 
CONCLUSION 


CHAPTER   XIX 
THE  REORGANIZATION  OF  STATE  ADMINISTRATION 

The  American  people  have  heretofore  for  the  most  part 
been  seemingly  content  to  settle  the  general  principles  of  their 
state  governments  in  the  constitutions  and  to  elaborate  details 
of  substantive  lav^r  in  the  statutes,  without  making  adequate 
provision  for  the  enforcement  of  such  constitutions  and  stat- 
utes and  without  taking  sufficient  account  of  the  problem  of 
efficient  administration.  The  development  of  the  state  ad- 
ministrative organization  has  for  a  long  time  past  been  largely- 
unconscious  and  consequently  haphazard.  Endless  incongru- 
ities and  absurdities  were  the  natural  result.  Where  im- 
provements in  organization  occurred  they  were  usually  acci- 
dental, partial  or  sporadic.  The  present  organization  of  state 
administration  contains  little  evidence  of  unified  design  or 
systematic  planning.  It  consists  of  a  complicated  mass  of 
separate  and  disjointed  authorities,  operating  with  little  ref- 
erence to  each  other  or  to  any  central  control.  This  situation, 
is  due  in  part  to  the  desire  of  political  "experts"  to  keep  the 
government  complicated  so  as  to  weaken  popular  control,  and, 
in  part,  to  general  popular  ignorance  of  the  importance  of 
efficient  administration.  There  are,  however,  signs  of  an 
awakening  from  this  condition  of  complacent  inertia.  The 
realization  of  the  need  for  preparedness  for  war  has  been 
accompanied  by  a  growing  perception  of  our  unpreparedness 
for  performing  efficiently  the  important  functions  of  govern- 
ment in  time  of  peace. 

The  feeling  has  developed  within  recent  years  that,  if 
any  systematic  improvement  in  state  administrative  organi- 

499 


AMERICAN  STATE  ADMINISTRATION 

zation  is  to  be  made,  it  must  be  based  upon  careful  investi- 
gation of  existing  conditions  and  upon  patient  analysis  of 
the  causes  of  present  evils.  As  a  result  of  such  investigation 
and  analysis,  constructive  measures  may  be  adopted  providing 
for  such  a  reorganization  of  the  various  state  departments, 
bureaus,  boards,  and  commissions  as  may  be  conducive  to  a 
more  efficient  and  economical  management  of  the  state's  busi- 
ness. To  this  end  many  governors,  in  their  messages,  are 
advocating  constructive  measures  looking  towards  radical 
changes  in  state  government  and  administration.  Already, 
preliminary  steps  have  been  taken  towards  the  formation  of 
an  investigational  basis  for  such  a  reorganization  through 
the  creation  of  efficiency  and  economy  commissions  in  vari- 
ous states,  notably  in  Illinois,  Massachusetts,  New  Jersey, 
Pennsylvania,  Maryland,  Minnesota,  Nebraska,  Iowa  and 
Connecticut.  Some  of  these  bodies  are  intended  to  be  more 
or  less  continuous  and  permanent,  others  were  created  for 
mere  temporary  purposes.  Some  are  undertaking  merely  to 
bring  about  improvements  in  administrative  methods  and  the 
details  of  administrative  procedure,  others  are  looking 
towards  a  thoroughgoing  reorganization  of  state  adminis- 
trative agencies  along  broad  lines. 

Most  of  the  efficiency  and  economy  commissions  have  con- 
fined themselves  to  recommending  such  changes  in  state  ad- 
ministrative organization  as  might  be  effected  through  statu- 
tory enactments.  Their  recommendations  aim  at  securing 
greater  concentration  of  power  and  responsibility  through  the 
consolidation  of  the  numerous  state  bureaus,  departments, 
boards  and  commissions  and  a  regrouping  of  the  adminis- 
trative services.  The  Illinois  commission,  for  example,  rec- 
ommended the  grouping  of  such  services  into  ten  principal 
departments,  namely,  finance,  education,  law,  trade  and  com- 
merce, labor  and  mining,  health,  agriculture,  public  works, 
charities  and  corrections,  and  military  affairs.  Recommenda- 
tions are  also  made  for  a  more  effective  correlation  of  state 

500 


STATE  ADMINISTRATIVE  REORGANIZATION 

revenues  and  expenditures  and  a  more  unified  control  over 
appropriations.  Comparatively  little  positive  advance  in  the 
development  of  an  efficient  administrative  organization  has 
yet  been  made  as  a  result  of  the  recommendations  of  the  ef- 
ficiency and  economy  commissions.  Here  and  there,  however, 
partial  improvements  have  been  made.  In  New  Jersey,  for 
example,  "laws  were  passed  providing  for  the  creation  of  the 
departments  of  conservation  and  development,  commerce  and 
navigation,  taxes  and  assessment,  and  shell  fisheries.  Under 
these  departments  are  grouped  services  which  have  hereto- 
fore been  performed  by  six,  four,  two,  and  seven  separate 
administrative  agencies,  respectively."  ^  "Furthermore,  in 
order  to  promote  efficiency  in  the  engineering  work  of  the  state 
and  to  avoid  duplication,  it  was  provided  by  law  that  there 
should  be  a  monthly  meeting  of  executive  officers  represent- 
ing the  departments  of  public  roads,  public  utilities,  motor 
vehicles,  conservation  and  development,  commerce  and  navi- 
gation, taxes  and  assessment,  together  with  the  state  archi- 
tect and  the  representatives  of  such  other  departments,  boards, 
and  bureaus  as  the  governor  may  direct."  ^  "Such  meetings 
may  prove  beneficial  in  promoting  cooperation  of  the  vari- 
ous state  departments  with  each  other  and  with  local  authori- 
ties, and  may  possibly  serve  as  the  first  step  towards  the 
further  consolidation  of  some  of  the  more  closely  related 
departments  represented  at  the  meetings." '  In  a  oumber 
of  other  states  there  has  also  recently  been  efifected  partial 
reorganization  of  state  administration  through  the  consoli- 
dation of  disjointed  but  germane  agencies,  particularly  in  the 
fields  of  education,  charities  and  correction,  agriculture,  labor 
and  finance. 

The  movement  toward  the  reorganization  of  state  adminis- 
tration  is   impeded  by   the   difficulty   of   state   constitutional 

*  New  Jersey  Session  Laws,  1915,  Chs.  241,  242,  244,  387. 

'Ibid.,  Ch.  190. 

'American  Year  Book,  1915,  pp.  212-3. 


AMERICAN  STATE  ADMINISTRATION 

amendment.  In  many  states  a  faulty  organization  of  the  ad- 
ministration is  so  crystallized  in  the  organic  law  that  thor- 
oughgoing reorganization  is  practically  impossible  without 
constitutional  change.  Minor  improvements  short  of  organic 
revision  may  produce  an  increased  economy  and  efficiency  in 
administration,  but  cannot  produce  a  far-reaching  effect  so 
long  as  the  fundamental  organization  is  defective.  Radical 
changes  are  unwise  unless  supported  by  an  educated  and 
intelligent  public  opinion.  The  development  of  such  an  edu- 
cated public  opinion  in  favor  of  radical  changes  in  state 
government  is  a  slow  process,  because  it  is  necessary  for  the 
people  to  rid  themselves  of  some  venerable  ideas  and  tradi- 
tional notions,  such  as  allegiance  to  the  principles  of  separa- 
tion of  powers  and  checks  and  balances,  the  undue  applica- 
tion of  which  to  the  state  governments  has  given  us  what 
has  been  called  the  "political  science  of  negation."  The  un- 
derlying conservatism  and  lack  of  political  imagination  of 
the  American  people  is  well  illustrated  by  their  failure  as 
yet  to  effect  any  radical  changes  in  the  administrative  organi- 
zation of  their  state  governments  in  the  face  of  their  demon- 
strated inefficiency. 

One  of  the  obstacles  to  efficient  administrative  organiza- 
tion in  many  states  is  the  practice  of  electing  the  heads  of 
the  older  executive  departments  by  popular  vote.  But  the 
introduction  of  the  short  ballot,  with  the  accompanying 
greater  concentration  of  executive  power  and  responsibility, 
is  usually  impossible  without  constitutional  change.  The  New 
York  Constitutional  Convention  of  1915  made  a  proposal  for 
the  introduction  of  a  modified  short  ballot  plan,  but  it  failed 
of  ratification  at  the  polls.  The  constitution  proposed  by  the 
Convention  also  contained  a  scheme  of  administrative  reorgan- 
ization, whereby  all  the  civil  administrative  services  and 
functions  of  the  state,  now  performed  by  nearly  one  hundred 
and  fifty  separate  departments,  boards,  bureaus,  and  officers, 
Vv'ould  be  grouped  into  the  following  seventeen  departments: 

502 


STATE  ADMINISTRATIVE  REORGANIZATION 

law,  finance,  accounts,  treasury,  taxation,  state,  public  works, 
health,  agriculture,  charities  and  correction,  banking,  insur- 
ance, labor  and  industry,  education,  public  utilities,  conser- 
vation, and  civil  service.  The  legislature  was  required  to 
provide  by  law  for  the  appropriate  assignment  of  all  civil 
administrative  functions  to  the  above  departments.  Every 
such  function  would  have  to  be  grouped  under  one  of  these 
heads,  as  no  additional  departments  could  be  created  by  legis- 
lative enactment.  In  most  cases  the  heads  of  departments 
were  to  be  appointed  by  the  governor  and  hold  during  his 
pleasure.  Although  a  more  efficient  organization  might  prob- 
ably have  been  secured  by  still  further  consolidation  and 
fuller  control  by  the  governor  over  the  various  departments, 
nevertheless  this  plan,  by  greatly  reducing  the  number  of 
separate  departments  and  placing  them  under  the  more  im- 
mediate control  of  the  governor,  would  undoubtedly  form  a 
more  efficient  organization  of  the  state  administration  than 
that  which  now  exists. 

Even  though  the  heads  of  all  the  existing  departments  were 
placed  completely  under  the  control  of  the  governor  by  grant- 
ing him  the  powers  of  unconditional  appointment  and  sum- 
mary removal,  he  would  still  not  be  sufficiently  argus-eyed  to 
watch  over  one  hundred  departments.  Consequently,  a  reduc- 
tion in  the  number  of  separate  state  agencies  is  necessary  for 
effective  central  control  over  them,  as  well  as  for  their  proper 
interrelation  and  cooperation.  With  such  effective  central 
control,  the  heads  of  the  executive  departments  could  be 
formed  into  a  body  of  advisers  to  the  governor  upon  the 
analogy  of  the  cabinet  officers  in  the  National  Government. 
Furthermore,  the  control  of  the  governor  over  the  state  ad- 
ministration should  be  strengthened  either  by  the  transfer 
from  local  to  state  officers  of  functions  connected  with  the 
enforcement  of  state  law  or  by  vesting  in  the  governor  a 
larger  power  of  control  over  such  local  officers. 

No  preconceived   ideas   or   outworn   formulas   of  govern- 

503 


AMERICAN  STATE  ADMINISTRATION 

ment  should  be  allowed  to  stand  in  the  way  of  the  main  ob- 
jects of  state  administrative  reorganization,  namely,  to  se- 
cure unity,  efficiency,  and  popular  control,  to  give  the  people 
the  largest  possible  return  for  the  increasing  cost  of  gov- 
ernment which  they  must  undergo,  in  other  words,  to  afford 
the  largest  possible  benefits  of  government  to  the  largest 
possible  number  of  people.  Light  upon  the  character  of  the 
concrete  measures  which  may  be  expected  to  accomplish  such 
objects  in  state  government  may  be  drawn  from  the  or- 
ganization of  the  National  Government,  from  recent  reforms 
in  municipal  organization,  and  from  experience  in  managing 
business  concerns  and  corporate  enterprises.  Such  analogies 
are  helpful,  provided  they  are  not  pushed  too  far.  The  states 
may  learn  much  from  the  administrative  unity  and  concen- 
trated authority  and  responsibility  in  the  executive  depart- 
ment of  the  National  Government.  But  the  states  are  essen- 
tially municipal  in  character  and  their  organization  should 
therefore  be  assimilated  to  that  appropriate  for  cities,  rather 
than  to  that  appropriate  for  a  national  government.  Undue 
insistence  upon  the  principles  of  separation  of  powers,  checks 
and  balances,  and  bicameral  legislative  system,  as  applied  to 
municipal  governments,  tends  to  produce  the  evils  of  internal 
friction  which  are  not  counterbalanced  by  any  accompanying 
advantages.  In  these  respects,  therefore,  the  organization  of 
the  state  governments  should  depart  from  the  analogy  of  the 
National  Government. 

The  state  governments  may  also  learn  much,  especially  in 
the  field  of  indirect  administration,  from  the  organization 
and  management  of  large  industrial  enterprises.  The  stock- 
holders or  owning  group  in  business  concerns  correspond 
roughly  to  the  political  people  in  state  governments,  while 
the  operating  group  corresponds  to  the  personnel  of  the  ad- 
ministration. Improvements  in  the  organization  of  the  ad- 
ministration may  be  effected  on  the  analogy  of  the  hierar- 
chical organization  and  concentrated  authority  in  the  operat- 

504 


STATE  ADMINISTRATIVE  REORGANIZATION 

ing  group  of  a  business  concern.  In  carrying  out  this  an- 
alogy, the  People's  Power  League  of  Oregon  proposed  the 
creation  of  a  state  business  manager  to  manage  the  business 
affairs  of  the  state  under  the  direction  of  the  governor. 
Greater  efficiency  and  economy  could  undoubtedly  be  secured 
through  a  more  business-like  management  of  the  public  busi- 
ness. It  is  to  be  noted,  however,  that  a  business  concern 
differs  fundamentally  from  a  government  in  that  it  is  run  for 
the  financial  profit  of  the  owners,  while  the  promotion  of  the 
general  welfare  and  social  betterment  are  more  important 
objects  of  governmental  activities  than  that  they  should  be 
carried  on  without  a  deficit.  Moreover,  business  concerns 
do  not  attempt  to  do  so  many  different  kinds  of  things  as 
are  included  in  the  multifarious  activities  of  a  state  govern- 
ment, and,  consequently,  such  governments  may  legitimately 
require  a  somewhat  more  elaborate  organization. 

Any  fundamental  improvement  in  the  position  of  the  state 
executive  involves  changes  along  two  lines :  first,  internal, 
and,  secondly,  external.  The  first  implies  a  readjustment 
of  the  relations  between  the  different  executive  and  adminis- 
trative agencies  in  the  interests  of  greater  unity,  responsibil- 
ity, concentration  of  authority  and  efficiency  in  action.  The 
second  implies  a  readjustment  in  the  relations  between  the 
executive  authorities  on  the  one  hand  and  the  legislature  and 
courts  on  the  other,  in  the  direction  of  more  effective  co- 
ordination and  more  harmonious  working  of  the  whole  struc- 
ture of  government.  Although  the  principle  of  separation  of 
powers  has  undoubtedly  been  carried  much  too  far  in  its  ap- 
plication to  the  state  governments,  there  is  nevertheless  some 
doubt  as  to  whether  it  would  be  wise  to  go  to  the  other  ex- 
treme and  merge  the  political  departments  of  such  govern- 
ments into  one.  The  executive  and  legislative  departments 
of  the  state  governments  should  be  brought  into  much  closer 
and  more  intimate  contact  and  cooperation  than  now  exists 
between  them,  but  not  into  such  close  relation  as  entirely  to 

505 


AMERICAN  STATE  ADMINISTRATION 

lose  their  separate  identities.  A  proper  specialization  of  func- 
tion for  the  distinct  purposes  of  formulating  and  executing 
public  policy  requires  distinct  organs  for  the  proper  per- 
formance of  such  functions  and  some  degree  of  interdepart- 
mental independence  in  order  to  prevent  undue  encroachment 
by  the  legislative  department  upon  the  appropriate  functions 
of  the  executive,  or  vice  versa.  No  unnecessary  legal  check 
should  rest  upon  either  department  in  the  free  and  untram- 
meled  exercise  of  the  powers  which  appropriately  belong  to 
it,  but  such  check  should  exist  to  prevent  the  assumption  by 
either  department  of  powers  for  the  efficient  exercise  of  which 
it  is  not  adapted.  The  power  of  the  state  legislature,  pro- 
vided that  body  is  reorganized  along  lines  of  greater  effi- 
ciency and  responsibility,  should  be  increased  with  respect 
to  its  function  of  formulating  public  policies,  subject  only 
to  the  limitations  of  the  Constitution  of  the  United  States. 
Its  power,  however,  of  encroaching  upon  the  proper  func- 
tion of  the  executive  department  by  interfering  in  the  details 
of  administration  should  be  considerably  curtailed.  The  leg- 
islature should  act  as  the  critic  of  the  administration  with 
respect  to  the  results  of  administrative  action,  but  should  not 
assume  the  role  of  dictator  of  the  detailed  methods  and 
processes  whereby  the  results  shall  be  achieved.  Such  mat- 
ters should  be  left  largely  to  the  discretion  of  the  executive 
authorities,  subject  only  to  the  limitations  of  the  constitu- 
tion for  the  safeguard  of  individual  rights. 

There  should  doubtless  also  be  some  curtailment  of  the 
power  of  the  legislature  to  determine  the  organization  of  the 
executive  and  administrative  authorities.  Some  tendencies  in 
the  direction  of  such  curtailment  may  already  be  discerned. 
The  constitutions  of  Nebraska  and  Arkansas  place  restric- 
tions on  the  legislature  in  respect  to  the  creation  of  any 
executive  and  administrative  agencies  in  addition  to  those 
provided  in  the  constitution  itself.  As  already  noted,  the  pro- 
posed New  York  constitution  of  1915  provided  for  a  scheme 

506 


STATE  ADMINISTRATIVE  REORGANIZATION 

of  administrative  organization  and  prohibited  the  legislature 
from  creating  additional  departments.  A  modification  of  this 
plan  would  be  to  provide  in  the  constitution  for  not  more  than 
a  dozen  executive  departments,  to  authorize  the  legislature 
to  provide  by  law  for  their  establishment,  and  to  require  that 
all  the  executive  and  administrative  services  of  the  state 
shall  be  organized  in  one  of  these  departments,  unless  ad- 
ditional departments  are  created  by  statute,  which,  however, 
shall  require  an  extraordinary  majority  vote  of  the  legisla- 
ture. There  would  be  some  decided  advantages,  however,  in 
placing  the  organization  of  the  executive  services  squarely  in 
the  hands  of  the  governor,  giving  him  power  to  organize  such 
services  into  not  more  than  a  dozen  executive  departments. 
To  this  power  should  also  be  added  that  of  reorganizing 
such  departments,  of  transferring  any  executive  service  from 
one  department  to  another,  as  occasion  may  require,  and  of 
placing  new  executive  services  as  created  within  such  of  the 
departments  as  he  may  deem  appropriate. 

The  governor  should,  of  course,  have  the  power  to  appoint 
the  heads  of  the  executive  departments.  Moreover,  he  should 
not  be  prevented  by  constitutional  restriction  from  appoint- 
ing members  of  the  legislature  to  such  positions.  As  early  as 
1873,  Mr.  Brodhead  submitted  a  proposition  in  the  Penn- 
sylvania Constitutional  Convention  of  that  year  providing  that 
"the  secretary  of  the  commonwealth,  attorney-general,  audi- 
tor-general, state  treasurer,  secretary  of  internal  affairs,  and 
the  superintendent  of  public  instruction  shall  be  entitled  to 
seats  in  the  house  of  representatives,  and  may  speak  upon 
questions  which  shall  arise  therein  relative  to  their  several 
departments,  and  may  be  questioned  concerning  the  same,  but 
shall  have  no  right  to  vote."  *  It  is  needless  to  say  that  the 
proposition  was  rejected,  and  has  not  since  met  with  such 
favor  as  to  bring  about  the  introduction  of  the  reform  which 

*  Debates  of  the  Pennsylvania  Constitutional  Convention  of   1873,  v, 
P-  359- 


AMERICAN  STATE  ADMINISTRATION 

it  embodies.  Yet  such  a  move  would  undoubtedly  be  in  the 
direction  of  more  effective  coordination  and  more  harmonious 
working  together  of  the  executive  and  legislative  departments. 

The  needed  readjustment  in  the  relation  between  the  ex- 
ecutive and  the  legislative  departments  of  the  state  govern- 
ments is  rendered  difficult  of  accomplishment  on  account  of 
the  defective  organization  of  the  legislature  itself.  The  leg- 
islature is  enveloped  in  a  cloud  which  the  searchlight  of  public 
opinion  can  scarcely  penetrate ;  its  organization  and  procedure 
are  so  complicated  as  to  afford  no  definite  lodgment  for  the 
salutary  rays  of  publicity.  It  cannot  be  expected  that  the 
legislature  will  be  efficient  unless  it  is  so  reorganized  that 
able  men  are  drawn  to  its  membership  and  given  larger  powers 
both  individually  and  collectively,  nor  can  it  be  expected  to 
act  under  a  sense  of  public  responsibility  unless  its  or- 
ganization and  methods  of  procedure  are  so  simplified  as  to 
attract  the  interest  and  intelligent  attention  of  the  mass  of 
the  people. 

Light  upon  the  nature  of  the  means  calculated  to  accom- 
plish such  a  reform  of  our  state  legislatures  may  be  drawn 
from  the  history  of  reform  in  the  organization  of  municipal 
councils.  Our  cities  were  at  one  time  characterized  by  Mr. 
Bryce  as  America's  greatest  failure  in  government.  Such 
fruitful  efforts,  however,  have  been  put  forth  in  recent  years 
towards  the  improvement  of  municipal  conditions  that  the 
states  now  possess  that  unenviable  distinction  and  must  now 
look  to  the  cities  as  pointing  the  way  of  reform.  It  is  ap- 
propriate that  we  should  turn  to  the  cities  for  light  upon  this 
problem  not  only  because  of  the  important  reforms  which 
have  been  effected  in  the  organization  of  city  councils,  but 
also  because  of  the  growing  realization  that  the  states  are 
essentially  municipal  in  character  and  should  therefore  be 
assimilated  in  organization  to  cities.  The  essentially  munici- 
pal character  of  the  states  arises  from  the  fact  that,  though 
more  extensive  geographically  than  cities,  they  are  neverthe- 

508 


STATE  ADMINISTRATIVE  REORGANIZATION 

less  governments  of  a  subordinate  character,  exercising  cer- 
tain powers  which,  under  the  National  Constitution,  cannot  be 
taken  away  from  them  by  the  National  Government,  just  as 
cities  may  exercise  certain  powers  which  the  state  constitu- 
tion protects  from  invasion  by  the  state  government.  In 
other  words,  the  states,  not  being  sovereign  or  independent 
governments,  have  no  need  for  an  organization  appropriate 
to  such  governments.  Nevertheless,  they  have  acquired  such 
an  organization  through  the  operation  of  historical  causes. 
Tlie  bicameral  legislative  system  in  England,  evolved  for  the 
representation  of  Lords  and  Commons  in  separate  houses, 
was  transplanted  to  this  country  and  applied  to  the  organi- 
zation of  the  legislative  bodies  in  nation,  states,  and  cities. 
In  the  case  of  the  nation,  the  need  for  two  houses,  one  in 
which  the  states,  and  the  other  in  which  population,  should 
be  represented,  added  solid  reason  to  historical  precedent 
in  supporting  the  application  of  the  bicameral  system.  But 
in  the  case  of  the  states  and  cities,  no  such  reason  exists. 
On  account  of  their  subordinate  municipal  character  there  is 
no  need  for  an  elaborate  system  of  checks  and  balances,  and  the 
bicameral  system,  as  applied  to  them,  should  be  abolished, 
unless  it  can  be  shown  that  it  increases  the  care  taken  in  the 
enactment  of  legislation,  thereby  improving  the  quality  of  the 
legislative  output.  Experience  would  seem  to  point  in  the 
opposite  direction.  The  bicameral  system  seems  to  make  for 
carelessness  in  legislation,  each  house  expecting  the  other  to 
correct  its  errors  of  haste  and  judgment,  whereas  if  there  were 
but  one  house,  greater  care  would  be  taken  because  the  action 
on  every  measure  would  be  of  much  more  consequence.  The 
bicameral  system  also  divides  responsibility,  each  house  at- 
tempting to  saddle  upon  the  other  the  blame  for  bad  legisla- 
tion, the  people  meanwhile  being  left  in  the  dark  as  to  the 
exact  location  of  responsibility  and  hence  the  real  culprits 
escape.  Realization  of  these  facts  has  led  to  the  introduction 
of  the  unicameral  system  in  the  majority  of  the  principal  cities 


AMERICAN  STATE  ADMINISTRATION 

of  the  country.  In  the  unicameral  city  councils  it  has  been 
found  that  friction  is  reduced  and  fewer  means  exist  for 
impeding  the  passage  of  salutary  measures,  nor  is  the  council 
so  easily  controlled  by  sinister  influences.  No  good  reason 
appears  why  similar  results  would  not  follow  the  introduction 
of  the  unicameral  legislative  body  in  the  states.  The  func- 
tions which  are  performed  separately  by  the  so-called  upper 
house  of  the  state  legislature,  such  as  the  confirmation  of 
appointments,  are  mostly  executive  in  character,  and  it  would 
make  for  the  concentration  of  responsibility  if  they  were  in- 
trusted solely  to  the  executive  branch  of  the  government.  We 
conclude,  therefore,  that  one  element  of  reform  of  our  state 
legislatures  would  be  to  get  rid  of  the  antiquated  second 
branch. 

Turning  again  to  the  progress  of  reform  in  the  cities,  we 
find  that  the  old  system  of  electing  members  of  the  city  coun- 
cil by  wards  has  in  many  instances  been  replaced  by  a  sys- 
tem of  election  at  large  without  regard  to  ward  lines.  This 
change  has  tended  to  secure  better  men  in  the  council,  men 
who  have  been  able  to  see  beyond  the  confines  of  the  petty 
district  of  the  city  in  which  they  live,  and  have  been  more 
free  to  act  for  the  general  interests  of  the  whole  city.  It 
must  be  admitted,  however,  that  the  city  is  more  of  a  unit, 
both  geographically  and  socially,  than  the  state,  and  it  does 
not,  therefore,  necessarily  follow  that  the  election  at  large 
of  the  members  of  the  unicameral  state  legislature  would  have 
equally  good  results.  The  greater  diversity  of  interests  and 
conditions  in  a  state  doubtless  make  local  representation  a 
less  undesirable  element  in  the  organization  of  the  state  legis- 
lature than  in  that  of  the  city  council.  Nevertheless,  if  the 
position  of  members  of  the  legislature  should  depend  upon  the 
sufifrages  of  the  whole  mass  of  voters  in  the  state,  abler  men 
could  in  all  probability  be  elected  and  they  would  feel  more 
free  to  act  for  the  general  interest  and  find  larger  oppor- 
tunity for  working  for  the  promotion  of  the  general  welfare. 

510 


STATE  ADMINISTRATIVE  REORGANIZATION 

Each  legislator  would  represent  the  people  of  the  whole  state 
and  the  eyes  of  the  voters  of  the  state  would  be  upon  each 
member,  thus  increasing  many-fold  his  sense  of  responsi- 
bility. 

In  order  to  reconcile  these  opposing  considerations,  a  com- 
promise might  be  arranged,  either  by  electing  some  of  the 
members  of  the  legislature  by  districts  and  others  on  a  gen- 
eral ticket,  or  by  dividing  the  state  into  districts  and  requiring 
the  member  elected  from  each  district  to  be  a  resident  of  that 
district,  but  to  be  elected  by  the  votes  of  the  people  of  the 
whole  state.  Either  of  these  arrangements  would  tend  to 
combine  the  advantages  and  eliminate  the  evils  of  both  the 
district  and  general  ticket  plans.  The  main  motive  for  gerry- 
mandering the  state  would  be  largely  taken  away,  the  general 
interests  would  be  more  carefully  safeguarded  than  at  pres- 
ent, while  adequate  provision  would  still  be  made  for  the 
representation  of  legitimate  local  interests. 

The  third  important  municipal  reform  which  we  may  con- 
sider in  its  bearing  upon  the  reorganization  of  state  govern- 
ment is  that  known  as  the  commission  form  of  government. 
The  success  which  this  form  has  attained  in  many  cities  has 
naturally  given  rise  to  the  question  as  to  the  feasibility  of  its 
application  to  states.  Thus  far  this  question  has  received 
surprisingly  little  consideration.  The  recent  recommendation 
of  former  Governor  Hodges  of  Kansas  has,  however,  brought 
it  into  prominence.  His  proposal,  however,  is  not,  strictly 
speaking,  for  the  commission  form  of  government  in  the 
states.  He  recommends  that  two  members  of  the  legislature 
be  elected  from  each  Congressional  district  in  the  state  to 
form  the  single-chambered  legislature,  and  that  the  governor 
shall  be  ex  officio  a  member  and  presiding  officer  of  this  as- 
sembly. This  suggested  reform  follows  in  main  outline  the 
proposed  constitutional  amendment  submitted  to  the  voters  of 
Oregon,  but  rejected  by  them.  This  was  a  plan  to  abolish  the 
state   senate,   and  to  give  the  governor  membership  in  the 

511 


AMERICAN  STATE  ADMINISTRATION 

house,  with  the  power  of  introducing  all  appropriation  bills. 
Both  of  these  plans  bring  the  legislative  and  executive 
branches  of  the  government  into  closer  contact.  They  disre- 
gard the  outworn  principle  of  the  separation  of  powers,  and 
increase  the   control  of  the  governor  over  legislation. 

The  size  of  the  unicameral  legislature  over  which,  under 
these  plans,  the  governor  would  preside,  would,  of  course, 
depend,  to  some  extent,  upon  the  size  and  population  of  the 
state.  The  districts,  however,  should  be  made  sufficiently- 
large  so  that  the  legislature  would  not  be  cumbrous  in  action, 
nor  require  elaborate  and  complex  rules  of  procedure.  The 
smaller  the  body,  the  more  intelligible  is  its  procedure  apt  to 
be,  the  less  opportunity  for  the  manipulations  of  the  political 
tactician  and  the  greater  the  sense  of  responsibility  which 
rests  upon  each  individual  member.  The  small  size  of  the 
legislature  would  enable  the  state,  without  additional  ex- 
pense, to  pay  the  members  sufficient  salaries  so  that  they 
could  devote  their  whole  time  and  attention  to  their  official 
duties.  And,  instead  of  meeting  at  stated  intervals  for  short 
periods,  they  could  meet  whenever  required  by  the  condition 
of  the  public  needs.  The  state  would  be  able  to  save  money 
not  only  in  salaries,  but,  in  much  greater  measure,  from  the 
greater  efficiency  and  more  business-like  management  of  the 
public  business. 

In  the  commission  form  of  government  as  found  in  cities 
both  executive  and  legislative  powers  are  lodged  in  the  hands 
of  the  same  body.  It  is  doubtful,  however,  whether  it  would 
be  expedient  to  apply  this  feature  without  modification  to  the 
state  governments.  The  danger  of  intrusting  the  appropri- 
ating and  spending  powers  to  a  single  body  would  probably 
be  greater  in  the  case  of  the  states.  Furthermore,  if  the  gov- 
ernor has  no  important  functions  separate  from  those  of  the 
commission,  his  identity  would  probably  be  merged  in  with 
the  commission  and  the  state  government,  like  a  pyramid 
without  an  apex,  would  lack  a  responsible  head.     To  avoid, 

512 


STATE  ADMINISTRATIVE  REORGANIZATION 

therefore,  this  disadvantage  of  what  may  be  called  the  pure 
commission  form  of  government,  the  governor  alone  should 
be  at  the  head  of  the  state  administration,  while  at  the  same 
time  holding  his  seat  in  the  small  unicameral  legislature. 

The  changes  outlined  above  in  the  organization  of  our  state 
governments  would  doubtless  necessitate  constitutional  re- 
vision of  considerable  magnitude.  Aside  from  the  legal  diffi- 
culties, there  would  also  be  the  opposition  of  party  organiza- 
tions and  of  various  sinister  influences  which  thrive  under  pres- 
ent conditions.  Opposition  from  these  sources,  however, 
would  merely  be  an  added  evidence  of  the  desirability  of  the 
change.  Another  source  of  opposition  would  doubtless  be  en- 
countered in  those  ultra-conservatives,  who  are  unable  to  rid 
themselves  of  preconceived  ideas  based  on  historical  traditions 
or  fictions.  But  there  is  little  more  reason  why  we  should 
retain  an  outworn  instrument  of  government  than  that  we 
should  continue  to  use  antiquated  methods  of  manufacture, 
production,  or  transportation.  As  indicated  by  recent  develop- 
ments in  various  states,  signs  are  not  wanting  that  the  mani- 
fest incongruities  and  maladaptations  of  the  present  system 
may  in  the  near  future  force  the  American  people,  in  spite 
of  all  opposition,  to  effect  a  radical  reorganization  of  the  state 
governments. 

If  such  a  reorganization  is  brought  about,  it  would  ad- 
mirably supplement  a  movement  now  in  progress  toward  in- 
creasing the  power  of  the  state  executive.  One  of  the  most 
promising  tendencies  in  state  government  today  is  the  in- 
creasing control  of  the  governor  over  legislation,  for  it  makes 
indirectly  for  an  increased  popular  control  over  the  state 
business.  But  this  tendency  is  at  present  checked  and  ham- 
pered by  the  cumbrousness  of  the  legislative  machinery.  It 
is  like  employing  an  able  and  efficient  chauffeur  for  a  lum- 
bering antiquated  machine,  which  can  be  made  to  move  in  the 
right  direction  only  slowly  and  spasmodically.  The  ability 
of   the  governor  to   exercise  a  positive  influence   upon   the 

513 


AMERICAN  STATE  ADMINISTRATION 

course  of  legislation  arises  largely  from  the  publicity  which 
he  is  able  to  throw  upon  its  processes,  thereby  fixing  respon- 
sibility where  it  belongs.  The  present  organization  of  the 
legislature,  however,  is  ingeniously  adapted  to  avoid  publicity 
and  evade  responsibility.  Hence  the  proposed  reorganization 
and  simplification  of  the  legislative  machinery  is  a  necessary 
means  toward  increasing  the  efficiency  of  executive  control. 
It  will  afiford  a  more  adequate  lodgment  for  the  rays  of  pub- 
licity through  the  greater  definiteness  in  the  location  both  of 
power  and  of  responsibility.  The  governor,  sitting,  speaking, 
and  voting  in  the  small,  compact,  wieldy  legislature  will  com- 
mand public  attention  and  his  enlightened  recommendations 
will  be  supported  by  irresistible  public  opinion.  The  executive 
and  legislative  branches  of  the  government  will  be  effectively 
harnessed  together  in  the  common  public  service. 

REFERENCES  AND  COLLATERAL  READING 

Barnett,  J.  D.  "Reorganization  of  State  Administration  in  Ore- 
gon," in  Commonwealth  Review  of  the  University  of  Oregon, 
i,  p.  66. 

Barrows,  D.  P.  "Reorganization  of  State  Administration  in  Cali- 
fornia," California  Lazv  Review,  January,  191 5. 

Bates,  F.  G.     American  Political  Science  Review,  ix,  pp.  317-322. 

Beard,  C.  A.  "Reconstructing  State  Government,"  The  New  Re- 
public, August  21,  191 5,  Part  ii. 

Bradford,  G.  "Reform  of  Our  State  Governments,"  Annals  of 
the  American  Academy  of  Political  and  Social  Science,  iv, 
pp.  883ff. 

"Commission  Government  for  Washington  State,"  in  Proceedings 
of  the  League  of  Washington  Municipalities,  1913,  pp.  17, 
68-73. 

Croly,  H.     The  Promise  of  American  Life,  Chs.  XI  and  XII. 

and  others.     "State  Political  Reorganization,"  Proceedings 

of  the  American  Political  Science  Association,  viii,  pp.   122- 

151- 
DoDD,  W.  F.     "Proposed  Reforms  in  State  Governmental  Organi- 
zation," American  Political  Science  Review,  iv,  pp.  243-251. 


STATE  ADMINISTRATIVE  REORGANIZATION 

DuRAND,  E.  D.  "The  Economy  and  Efficiency  Commission  of 
Minnesota,"  Proceedings   of   the  National   Tax  Association, 

1914,  pp.  391-404. 
Fairlie,  J.  A.,  HoRACK,  F.  E.,  Dykstra,  C.  A.,  Young,  J.  S., 

Barnett,  J.  D.  and  James,  H.  G.,  in  American  Political  Sci- 
ence Review,  ix,  pp.  252-303. 
Ford,  H.  J.     "Reorganization  of  State  Government,"  Proceedings 

of  the  Academy  of  Political  Science,  iii,  pp.  30-36. 
Hanford,  A.  C.     "Efficiency  and  Economy  Commissions  in  Other 

States,"  in  Report  of  the  Efficiency  and  Economy  Committee 

of  Illinois,  pp.  971-998. 
Hemenway,  H,  B.     "The  Organization  of  the  State  Executive  in 

Illinois,"  Illinois  Law  Review,  vi,  pp.  1 12-125. 
Hikes,  W.  D.     "Our  Irresponsible  State  Governments,"  Atlantic 

Monthly,  May,  191 5,  p.  637. 
HoRACK,  F.  E.     "Reorganization  of  State  Government  in  Iowa,"  in 

Iowa  Applied  History  Series,  ii,  No.  2. 
Kales,  A.  M.     Unpopidar  Government  in  the  United  States,  Chs. 

XIV  and  XV. 
New  York  Bureau  of  Municipal  Research,  "The  Constitution  and 

Government  of  the  State  of  New  York,"  Bulletin  No.  61,  May, 

1915. 

Reed,  T.  H.     Government  for  the  People,  Ch.  XI. 

Reports  of  State  Efficiency  and  Economy  Commissions. 

Tyng,  T.  S.  "Draft  of  a  Frame  of  State  Government,"  Political 
Science  Quarterly,  June,  191 2. 

U'Ren,  W.  S.  "State  and  County  Government  in  Oregon  and  Pro- 
posed Changes,"  Afitials  of  the  American  Academy  of  Political 
and  Social  Science,  xlvii,  pp.  271-273. 


TABLE  OF  CASES  CITED 

Adams  Express  Co.  vs.  Ohio  (165  U.  S.,  194),  258 

Alexander  vs.  State  (56  Ga.,  478),  68 

Appropriations  for  Deputy  State  Officers,  In  re  (25  Neb.,  662),  131 

Arnett  vs.  State  (80  N.  E.,  153),  69 

Arnold  vs.  State  (71  Tex.,  239),  130 

Attorney-general  vs.  Brown  (i  Wis.,  513),  109 

vs.  Fox  (72  N.  J.  L.,  6),  435 

vs.  Jochim  (99  Mich.,  358),  12,  96,  loi 
Banks  vs.  Wells  (75  S.  E.,  791),  436 
Benson  vs.  People  (10  Colo.  App.,  175),  108 
Blue  vs.  Beach  (155  Ind.,  121),  324 

Board  of  School  Commissioners  vs.  Morris  (91  Atl.,  718),  315 
Booth  vs.  McGuinness  (75  Atl,  455),  198 
Bridges  vs.  Shallcross  (6  W.  Va.,  562),  48,  130 
Cameron  vs.  Parker  (2  Okla.,  277),  108 
Campion,  Ex  parte  (112  N.  W.,  585),  434 
Cardoza  vs.  Epps  (23  S.  E.,  296),  434 

C.  C.  C  &  St.  L.  Railway  vs.  Backus  (154  U.  S.,  421),  258 
Chicago,  etc.,  Railway  Co.  vs.  Minnesota   (134  U.  S.,  418),   161 
Chicago  vs.  Wright   (69  111.,  326),  424 
City  of  Jackson  vs.  Whiting  (84  Miss.,  163),  129 
Collins  vs.  State  (8  Ind.,  344),  95,  152 
Collins  vs.  Tracey  (36  Tex.,  546),  99 
Commonwealth  vs.  Barnett  (199  Pa.  St.,  161),  62 

vs.  Gamble  (62  Pa.  St.,  343),  99 

vs.  Havrilla  (38  Pa.  Super.  Ct.,  292),  145 

vs.  Mathues  (210  Pa.,  372),  146 

vs.  McHale  (97  Pa.,  397),  145 

vs.  Slifer   (25  Pa.  St.,  23),  108 
Corliss,  Ex  parte  (16  N.  D.,  470),  429,  436 
Cornell  vs.  Irvine  {77  N.  W.,  114),  150 
Crump,  Ex  parte  (135  Pac,  428),  135 
Cull  vs.  Wheltle  (114  Md.,  58),  109 
Davis,  Ex  parte  (41  Me.,  38),  69 
Davis  vs.  Holland   (168  S.  W.,   11),  421 
Dreyer  vs.  Illinois  (187  U.  S.,  71),  371 
Druecker  vs.  Salomon  (21  Wis.,  628),  114 


TABLE  OF  CASES  CITED 

Dubuc  vs.  Vess  (19  L.  R.  A.,  210),  98 
Dullam  vs.  Willson  (53  Mich.,  392),  loi,  107 
Ekern  vs.  McGovern  (154  Wis.,  157),  108,  109 
Elliott  vs.  Pardee  (149  Calif.,  516),  16 
Evans  vs.  Populus  (22  La.  Ann.,  121),  102 
Fergus  vs.  Russel   (270  111.,  304),  62,  141,  143 
Field  vs.  People  (3  111.,  79),  10,  80,  98 

Fire  and  Excise  Commissioners,  In  re  (19  Colo.,  482),  109,  438 
Flood  vs.  State  (27  Okl.,  852),  436 
Fox  vs.  McDonald  (loi  Ala.,  51),  83 
Franks  vs.  Smith  (142  Ky.,  232),  115 
Fuller  vs.  Heath  (89  111.,  296),  297 
Garland,  Ex  parte  (4  Wall,  333),  122 
Geiger  vs.  State  (25  Ohio  Cir.  Ct.  R.,  742),  467 
George  vs.  People  (167  111.,  447),  371 
Germaine  vs.  Ferris  (12  N.  W.,  738),  106 
Gilhooley  vs.  City  of  Elizabeth   (66  N.  J.  L.,  484),  69 
Gilmore  vs.  Penobscot  Co.   (78  Atl.,  454),  436 
Greene  vs.  State  (15  Lea  (Tenn.),  708),  115 
Greer  vs.  Merchants  and  Mechanics  Bank  (169  S.  W.,  802),  137 
Guden,  matter  of  (171  N.  Y.,  529),  108 
Gunnison  vs.  Board  of  Education   (176  N.  Y.,  ll),  297 
Harrington  vs.  Pardee  (i  Calif.  App.,  278),  94 
Hatfield  vs.  Graham  (81  S.  E.,  533),  117,  442 
Henry  vs.  State  (39  So.,  856),  81 
Horine,  Ex  parte   (148  Pac,  825),  127 
House  Bill  203,  In  re  (21  Colo.,  27),  407 
Houston  vs.  Moore  (5  Wheaton  i),  116 
Initiative  State  Question,  In  re  (26  Okla.,  554),  140 
Jones,  Ex  parte   (71  W.  Va.,  609),  117,  442 
Keenan  vs.  Perry  (24  Tex.,  253),  81,  98,  107 
Kendall  vs.  U.  S.  (12  Peters,  524),  79 
Kentucky  vs.  Dennison  (24  How.,  66),  119 
Lamar  vs.  Croft  (53  S.  E.,  542),  15 
Lane  vs.  Commonwealth  (103  Pa.  St.,  481).  102 
Louisiana  vs.  Dubuclet  (22  La.  Ann.,  602),  81 
Lucas,  Ex  parte  (160  Mo.,  218),  89 
Lynch  vs.  Chase  (55  Kan.,  367),  102 
MacDonald,  Ex  parte  (143  Pac,  947).  44° 
McDonald  vs.  Burnett  (92  S.  C,  469),  98 
Maine  vs.  Grand  Trunk  Railway  (142  U.  S.,  217),  258 
Martin  vs.  Witherspoon  (135  Mass.,  175),  68 
Melone  vs.  State  (51  Calif.,  549),  138 
Merrill  vs.  State  (65  Neb.,  509),  131 
Moyer,  Ex  parte  (12  Idaho,  250),  119 
Moyer,  In  re  (35  Colo.,  159),  ii7,  440 

518 


TABLE  OF  CASES  CITED 

Moyer  vs.  Peabody  (212  U.  S.,  78),  440 

Neagle,  In  re  (135  U.  S.,  i),  81 

Nicholson  vs.  Thompson  (5  Rob.  (La.),  367),  98 

Opinion  of  Judges,  In  re   (3  Neb.,  463),  50 

Opinion  of  Justices,  In  re  (94  N.  E.,  852) 

Owen,  Ex  parte  (136  Pac,  197),  119 

Page  vs.  Hardin  (47  Ky.,  648),  107 

Parks  vs.  Commissioners  of  Soldiers  and  Sailors  Home  (22  Colo.,  86), 

138 
Parsons  vs.  U.  S.  (167  U.  S.,  324),  98 
Pettibone,  Ex  parte  (12  Idaho,  246),  119 
People  vs.  Ahearn  (196  N.  Y.,  221),  106 

vs.  Bissell   (19  HI.,  229),  15 

vs.  Board  of  State  Auditors   (42  Mich.,  422),  15 

vs.  Cazneau  (20  Calif.,  504),  102 

vs.  Denman  (65  Pac,  455),  108 

vs.  Evans   (247  111.,  547),  134 

vs.  Forquer  (i  111.,  104),  151 

vs.  Glazier  (159  Mich.,  528),  146 

vs.  Hatch   {33  111.,  9),  55 

vs.  Nellis  (249  111.,  12),  102 

vs.  Nowasky  (254  III,  146),  371 

vs.  Kipley  (171  III.,  44),  196 

vs.  Santa  Clara  Lumber  Co.  (106  N.  Y.  S.,  624),  11,  95,  151 

vs.  Spring  Lake  Drainage  and  Levee  District  (253  111.,  479),  142 

vs.  Stuart   (74  Mich.,  411),  102 

ex  rel.  Robin  vs.  Hayes  (143  N.  Y.  Supp.,  325),  50,  56,  121 

ex  rel.  Peixotto  vs.  Board  of  Education  (145  N.  Y.  Sup.,  853),  315 

ex  rel.  State  Board  of  Charities  vs.  New  York  Society  for  Preven- 
tion of  Cruelty  to  Children   (162  N.  Y.,  429),  339 
Pinckney  vs.  Henegan  (2  Strob.  (S.  C),  250),  11,  95,  151 
Police  Commissioners  of  Jersey  City  vs.   Pritchard    (36  N.   J.  L.    (7 

Vroom),  lor),  104 
Public  Service  Gas  Co.  vs.  State  Board  of  Public  Utility  Commission- 
ers (84  N.  J.  L,  463),  162 
Railroad  Commissioners,  In  re  (15  Neb.,  679),  130 
Regents  of  University  of  Oklahoma  vs.  Pratt  (28  Okla.,  83),  62 
Rice  vs.  Austin  (19  Minn.,  103),  16 
Rice  vs.  Governor  (207  Mass.,  577),  15 
Richardson  vs.  Young   (122  Tenn.,  471),  53 
Seawell  vs.  Gifford  (22  Ida.,  295),  138 
Shields  vs.  Bennett   (8  W.  Va.,  74),  11,  82 
Slack  vs.  Jacobs  (8  W.  Va.,  612),  11,  95,  151 
State  vs.  Ansel   (78  S.  C,  331),  129 

vs.  Bailey   (16  Ind.,  46),   11,  95,   151 

vs.  Barber  (4  Wyo.,  409),  139,  153 


TABLE  OF  CASES  CITED 

State  vs.  Bobleter   (83  Minn.,  479),  146 
vs.  Bowden  (92  S.  C,  393).  80 
vs.  Bryan  (50  Fla.,  293),  88 
vs.  Buchanan  (24  W.  Va.,  362),  69,  419 
vs.  Cheetham  (19  Wash.,  330),  107 
vs.  Qayton  (43  Tex.,  410),  418 
vs.  Cohen  (28  La.  Ann.,  645),  109 
vs.  Cornell    (60  Neb.,  276),   131 
vs.  Ehrlick   (65  W.  Va.,  700),  141 
vs.  Eskew   (64  Neb.,  600),  131 
vs.  Fanning   (147  N.  W.,  215),  470 
vs.  Finnerud  (7  S.  D.,  237),  94 
vs.  Gilbert  (147  N.  W.,  953) 
vs.  Governor  (25  N.  J.  L.,  331),  15 
vs.  Graham   (26  La.  Ann.,  568),  I35 
vs.  Griffin  (69  Minn.,  311),  89 
vs.  Hawkins  (44  Ohio  St.,  98),  107 
vs.  Haworth    (122  Ind.,  462),  297 
vs.  Illinois  Central  R.  R.  Co.    (246  111.,  188),  131 
vs.  Jepson   (76  Kan.,  644),  145 
vs.  Johnson  (30  Fla.,  499),  m 
vs.  Kipp  (10  S.  D.,  495),  99 
vs.  Lewis   (6  Ida.,  51),  I39 
vs.  Maben   (114  Pac.,  1122),  436 
vs.  McNay  (100  Md.,  622),  467 
vs.  Megaarden  (88  N.  W.,  412),  109 

vs.  Minnesota  &  Ontario  Power  Co.   (141  N.  W.,  839),  248 
vs.  Potterfield    (47  S.  C,  75),  48,  130 
vs.  Rhame  (75  S.  C,  881),  98 
vs.  Rost  (16  So.,  776),  109 
vs.  Sadler  (23  Nev.,  356),  135 
vs.  Samaulia  (33  La.  Ann.,  446),  107 
vs.  Snyder   (131  La.,  145),  160 
vs.  Taylor  (145  N.  W.,  425),  161 
vs.  Village  Council  of  Osakis  (128  N.  W.,  295),  141 
vs.  Womach  (4  Wash.,  19),  I37 
vs.  Wright  (158  S.  W.,  823),  89 
State  Board  of  Equalization  Case  (191  HI-,  529),  260 
State  ex  rel.  Bienvenu  vs.  Wrotnowski  (17  La.  Ann.,  156),  152 

Fleming  vs.  Crawford  (28  Fla.,  44O,  I53 

Haskell  vs.  Huston  (21  Okla.,  782),  I54 

Hussey  vs.  Daniels  (143  Wis.,  649),  248 

Marrero  vs.  Ehret  (65  So.,  871),  129 

May  vs.  Brown  (W.  Va.,  527),  117,  442 

Rosbach  vs.  Pratt  (68  Wash.,  157),  I54 

Stubbs  vs.  Dawson   (86  Kan.,  180),  154 

520 


TABLE  OF  CASES  CITED 

State  ex  rel.  Warmoth  vs.  Graham   (26  La.  Ann.,  568),  49 

State's  Prison  vs.  Day  (124  N.  C,  362),  94 

State  Tax  Commissioner  vs.  Board  of  Assessors  (124  Mich.,  491),  248 

Stettler  vs.  O'Hara   (139  Pac,  743),  162 

Taylor  vs.  Beckham  (108  Ky.,  278),  55 

Teachers'  Federation  Case  (191  111.,  529),  260 

Thaw,  Ex  parte  (214  Fed.,  423),  119 

Thomas  vs.  Mead  (36  Mo.,  232),  434 

Tonart  vs.  State  (56  So.,  211),  107 

Trimble  vs.  People  (19  Colo.,  187),  107,  438 

United  States  Express  Co.  vs.  Minnesota  (223  U.  S.,  335).  258 

Virginia  vs.  Tennessee  (148  U.  S.,  503),  118 

Wells,  Ex  parte  (18  How.,  307),  126 

Wilcox  vs.   People    (90  111.,  186),  loi,  107 

Woods  vs.  State  (169  S.  W.,  558),  371 


INDEX 


Accounts,  supervision  of,  275 
Accounting  methods,  state,  278 
Adjutant-general,  116 
Administration,         administrative 
control  over,  16,  96,  163,  186 
control  over,  gff. 
definition  of,  3 

judicial  control  over,  15,  108, 
109,  no,  151,  161,  232,  247, 
390,  416,  426,  438,  440,  455, 

457,  472 
legislative  control  over,  10,  163, 

286,  345,  417,  418,  506 
popular  control  over,  9,  173,  185 
reorganization  of,  499ff. 
Administrative       decentralization, 

18,  93,  221,  267,  316,  319,  340, 

362,  385,  421 
powers  of  governor  in,  79ff. 
Agent,  state  purchasing,  284 
Agriculture,  promotion  of,  486 
Alabama,  governor's  revenue  bill 

in,  58 
governor's  term  in,  46 
health  administration  in,  396 
law  enforcement  in,  425 
power  of  governor  to  propose 

amendments  to  bill  in,  63 
power  of  legislature  in  special 

session  in,  56 
state  prison  inspector  in,  341 
superintendent  of  public  instruc- 
tion in,  312 
taxation  in,  255 
Appointment,  of  state  officers,  I73ff 
governor's  power  of,  29,  33,  37, 

38,  39,  42,  83-95,  175 


Appointment,  New  York  Council 

of,  33,  39,  177 
Arizona,  taxation  in,  270 
Arkansas,    executive    officers    in, 

I37n.,  506 
governor's  pardoning  power  in, 

128 
Assessment   lists,   publication   of, 

237 
Assessor,  local  tax,  224,  239,  244, 

245 
Attendance,     compulsory     school, 

321-3 
Attorney-general,     state,     140-145, 

154,  279,  415,  426 
Attorney,    local   prosecuting,    144, 

424,  426,  454,  466 
Auditor,  state,  147,  235,  241,  254, 

277,  278 

Ballot,  the  short,  i8off. 
Baltimore,    health    authorities   in, 

375 

police  in,  450 

tax  on  securities  in,  271 
Banks,  taxation  of,  250,  259,  264 
Boards  and  commissions,  of  char- 
itable and  correctional  insti- 
tutions, 343ff. 

civil  service,  208 

classification  of,  159 

consolidation   and   abolition   of, 
171 

of  control,  352 

county  school,  301 

of  education,  305 

efficiency  and  economy,  SCX)ff. 


523 


INDEX 


Boards  and  commissions,  of  equal- 
ization, 235 

examining,  390 

expenditures  of,  283 

finance,  281 

growth  of,  157 

of  health,  375 

internal  organization  of,  162 

and  law  enforcement,  454ff. 

normal  school,  327 

of  pardon,  124 

police,  450 

powers  of,  160 

relation  of  to  governor,  87 

special  attorneys  for,  142 

state,  136 

supervisory,  348 

tax,  241 

versus  single  commissioners,  164 
Bonds,  issuance  of  state,  216 
Boss,  governor  as,  75 
Boss-rule,  71 
Budget,  state,  284-293 


California,  board  of  education  in, 
306 

charitable  and  correctional  ad- 
ministration in,  352 

civil  service  law  in,  195,  198, 
200,  201,  202,  205,  206 

department  of  education  in,  313 

governor's  veto,  60 

health  administration  in,  375, 
378,  381 

industrial  accident  commission 
in,  163 

law    enforcement    in,    443,    455, 

457 
library  board  in,  331 
normal  schools  in,  328 
pardon  board  in,  I24n. 
school  textbook  supply  in,  325 
short  ballot  in,  183 
state  purchasing  agent  in,  284 
taxation  in,  263,  264 


Centralization,  administrative,  157, 
219,  220,  240,  246,  253,  267, 
27s,  278,  305,  320,  326,  341, 
342,  393,  431,  450 
Charities  and  corrections,  admin- 
istration of,  335ff. 
boards  of  control  of,  352 
boards  of  trustees  of,  343 
dual  system  of  control  of,  360 
expenditures  for,  283 
group  system  of,  347 
local  origins  of,  336 
private  agencies  for,  338 
state  institutions  of,  342 
state  supervision  of,  337 
supervisory  boards  of,  348 
Chicago,  law  enforcement  in,  422, 

450,  460,  466,  468 
Civil  service,  commissions  of,  I96ff. 
selection  of,  2o8ff. 
state,  191  ff. 
Classification,  of  criminals,  363 

of  objects  of  taxation,  270 
Colorado,    board    of    pardons    in, 
125 
civil    service    law    in,    195,    198, 

200,  201,  202,  205,  206 
enforcement  of  law  in,  407,  433, 

440 
governor's    military    power    in, 

117 
governor's    removal    power    in, 

109 
state  normal  schools  in,  328 
Commissions.    See  Boards 
Comptroller,    state,    147,   241,   253, 

277,  278,  292 
Conference  of  governors,  131 
Connecticut,    board    of    education 
in,  306,  308 
budget  in,  289 

civil  service  law  in,  195,  198 
compulsory     school     attendance 

in,  322 
efficiency  and  economy  in,  500 
governor's  reprieves  in,  121 


524 


INDEX 


Connecticut,  gcvernor's  veto  in,  65      Departments,    the    governor    and, 


health    administration    in,    375, 

396 
law  enforcement  in,  445 
supervision    of    private    schools 

in,  323 
taxation   in,  260,  263,   264,  269, 

274n. 
Consolidation  of  schools,  300 
Constabulary,  state,  116,  444ff. 
Control    over    the   administration, 

forms  of,  8ff. 
Control,   state  boards  of,  3S2ff. 
Convict  labor,  364ff. 
Corporations,   supervision   of,  474 

taxation  of,  25off.,  259,  264 
Correctional    administration,    335, 

362ff. 
Council     of     appointment,     New 

York,  33,  39,  177 
Council,  executive,  32,  136,  254 
Council   of    revision,   New   York, 

34,  36 
County  school  board,  301 
County  superintendent  of  schools, 

302,  319 
County  unit  for  schools,  301 
Courts.     See  Justice,  administra- 
tion of 
Criminals,    classification    of,    363 

rendition  of,  118 
Custody  of  state  funds,  146,  279 

Debts,  state,  216 
Decentralization,      administrative, 

18,  93,  221,  267,  316,  319,  340, 

362,  38s,  421 
Delaware,    health    administration 

in,  375 
secretary  of  state  in,  138 
taxation  in,  254 
Democracy  and  law  enforcement, 

410,  415 
Departments,   state   executive,  80, 

137.  149.  500,  503,  507 
Departments,  heads  of,  I36ff. 


84-87,  96,  97,  I48ff.,  503 
District,  the  school,  297-300 

Education,       administration       of, 
296ff. 
expenditures  for,  283 
National  Government  and,  332 
state  board  of,  305 
state  commissioner  of,  308 
state  law  enforcement  of,  458 
United  States  Bureau  of,  332 

Efficiency    and   economy   commis- 
sions, 171,  281,  288,  291,  361, 

500 
Election  of  state  officers,  I74ff. 
Employees,  state,  134 
Enforcement  of  state  law,  40iflf., 

81,  82,  105,  141,  322 
boards    and    commissions    and, 

454ff. 
constabulary  and,  444 
democracy  and,  410 
executive  dispensation  and,  419 
Federal   Government   and,   458- 

461 
governor  and,  432 
graft  and,  412 
home  rule  and,  42oflf. 
militia  and,  437 
party  machines  and,  411 
police   and,   411 
private  initiative  and,  413 
public  opinion  and,  410 
Equalization  of  taxes,  23iflf. 
Execute  the  laws,  governor's  pow- 
er to,  81 
Executive  council,  32,    136,  254 
Executive    department,    state,    80, 

137,  149,  427 
Executive  dispensation  in  law  en- 
forcement, 419 
Expenditures,  state,  282 

Fee  system,  139,  141,  279 
Finance,  state,  2isff. 


525 


INDEX 


Florida,  health  administration  in, 

375 
governor  and  secretary  of  state 

in,  152 
governor's    removal    power    in, 

III 
special  session  in,  57 
Functions,  direct  and  indirect,  215 

growth  of  state,  6,  283,  474 
Funds,  custody  of  state,  146,  279 
state  school,  320,  321 

Georgia,  governor's  power  to  is- 
sue  regulations  in,  68 

Frank  case  in,  469 
Governor,    and    adjournment    of 
legislature,  54 

administrative  powers  of,  79ff. 

application  of  for  Federal  pro- 
tection, 119 

calling  special  sessions  by,  55 

changing  place  of  sessions,  55 

colonial,  2sff. 

command  over  militia  by,  29,  34, 
109,  114-117,  437ff. 

and  council,  32,  136 

election  of,  42 

ex    officio    member    of    boards, 

130 

extra-legal  legislative  power  of, 

60-77 
and  heads  of   departments,  84- 

87,  96,  97,  148-155,  503,  507 
and  law  enforcement,  425,  427, 

432ff,  452 
legislative    powers    of,    30,    33, 

52ff. 
and  legislature,  511,  513,  514 
messages  of,  to  legislature,  57 
ordinance  power  of,  67 
as  political  leader,  7ofif. 
power  of,  appointment  by,  82ff. 
to  designate  state  depositories, 

280 
to  execute  laws,  8r 
to  pardon,   120-128 


Governor,    power    of,    to    reduce 
appropriations,  62 
removal  by,  42,  98-113,  416 
supervision  by,  95 
to  veto,  28,  30,  33,  34,  36,  42, 
59-67 
Graft  and  law  enforcement,  412 

Health  administration,  bureaus 
and  divisions  of,  382 

examination  and  licensure,  func- 
tion of,  389 

powers  of  state  boards  of,  384 

public,  374ff. 

quarantine  in,  391 

relations  of  state  and  local  au- 
thorities to,  392ff, 

state  boards  of,  375ff. 

state  commissioner  of,  377ff. 

vital  statistics,  function  of,  387 
Home  rule,  local,  18,  93,  99,  106, 
224,  240,  244,  299,  316,  319, 
496,  420ff,  426,  429,  450 

Idaho,    governor's    power    to    re- 
duce appropriations  in,  62 
secretary  of  state  in,  138 
Illinois,    accounting    methods    in, 
279 
administration  of  education  in, 

316-318 
agriculture  in,  487,  488,  489 
the  budget  in,  287 
charitable   and  correctional  ad- 
ministration    in,     339,     348, 
353,  354,  358,  360,  362n.,  369, 
37in. 
civil  service  law  in,  195,  198, 199, 
200,  201,  202,  203,  204,  205, 
206 
consolidated  schools  in,  300 
efficiency  and  economy  in,  500 
elective  officers  in,  176,  177 
executive  department  in,  80 
governor    as    railroad    commis- 
sioner, in,  I3in. 


526 


INDEX 


Illinois,  governor's  message  in,  58 

governor's  power  of  appoint- 
ment in,  83 

governor's  power  of  removal  in, 
100 

governor's  power  of  reprieve  in, 
128 

governor's  power  to  reduce  ap- 
propriations in,  62 

governor's  veto  power  in,  60 

health  administration  in,  2)7^^ 
277,  381,  390,  392 

inspector   of    rural    schools    in, 

314 
labor  legislation  in,  485 
law    enforcement    in,    422,    433, 

450,  455.  466,  468,  470 
no   county   board   of    education 

in,  301 
pardon  board  of,  124 
proposed  state  board  of  educa- 
tion in,  306 
public    utilities    commission    in, 

476 
roads  in,  492,  493 
salary  of  governor  in,  48 
school  district  in,  297 
secretary  of  state  in,  138 
special  session  in,  49 
state  auditor  in,   147,   148 
state  normal  schools  in,  327 
state  treasurer  in,  145 
state  university  board  in,  328 
superintendent  of  public  instruc- 
tion in,  309,  310 
taxation   in,  222,  228,  235,  236, 
237,  241,  257,  259,  260 
Impeachment,  104,  185 
Income,  state,  2i6ff. 
Income  tax,  state,  264,  273 
Indeterminate  sentence,  368 
Indiana,  charitable  and  correction- 
al   administration    in,    341, 
348,  357n. 
compulsory    school    attendance 
in,  322 


Indiana,   consolidated    schools   in, 
300 
county  superintendent  of  schools 

in,  302,  303 
health   administration   in,   378 
higher  education  in,  330 
law    enforcement    in,    425,    426, 

449,  450 
local  prosecuting  attorney  in,  145 
secretary  of  state  in,  151 
state  auditor  in,   148 
state    board    of    education    of, 

306 
state  library  board  in,  331 
state  treasurer  in,  145 
supervision  of  local  accounts  in, 

278 
supervision  of  school  buildings 

in,  324 
taxation  in,  239,  242,  251 
township  school  unit  in,  300 
Inheritances,  taxation  of,  263,  264, 

273,  275 
Instruction,    state    superintendent 

of  public,  308-319 
Insurance      commissioner,      state, 

279,  281 
Insurance  companies,  taxation  of, 

251,  259,  264 
Iowa,  charitable  and  correctional 
administration  in,  348,  349, 
353,  354,  357n. 
county  superintendent  of  schools 

in,  303 
efficiency  and  economy  in,  500 
governor's    power    of    appoint- 
ment in,  91 
health  administration  in,  392 
injunction   and    abatement   law, 

470,  471 
law  enforcement  in,  426,  470 
local    prosecuting    attorney    in, 

145 
short  ballot  in,  183 
taxation   in,  228,  238,  252,   253, 

254 


527 


INDEX 


Judicial  control  over  the  adminis- 
tration, 15,  108,  109,  no, 
151,  161,  232,  247,  390,  416, 
426,  438,  440,  455,  457,  472 

Jury  system,  465!?. 

Justice,  administration  of,  416, 
42s,  426,  438,  463ff. 

Kansas,  charitable  and  correction- 
al   administration    in,    348, 

354 
civil  service  law  of,  195,  245 
county  superintendent  of  schools 

in,  303 
governor's    conditional    pardon 

in,  127 
higher  education  in,  330 
law  enforcement  in,  470 
local    prosecuting    attorney    in, 

145 
school  textbook  supply  in,  325 
state  normal  schools,  328 
taxation  in,  248,  256 
Kentucky,   charitable  and   correc- 
tional administration  in,  352 
law  enforcement  in,  423-424 
governor  of  and  militia,  116 
governor's  pardoning  power  in, 

123 
taxation  in,  225,  255,  270 

Labor,  convict,  364ff. 
legislation  on,  481 
unions  and  law  enforcement  in 
relation  to,  443 

Legislative  control  over  the  ad- 
ministration, 10,  163,  286, 
345.  417,  418,  506 

Legislature,     governor's     control 
over,  30,  33,  S2ff. 
reorganization  of,  5o8ff. 

Library  administration,  330-332 

Lieutenant-governor,   50,   134-136 

Local  accounts,  state  supervision 
of,  275-278 

Local    self-government,    18,    106, 


299,  316,  319,  393,  394,  420ff., 

423,  426,  431 
Louisiana,  civil  service  law  in,  195 
health    administration    in,    374, 

375,  381 
secretary  of   state   in,    138,    152, 

309 
state  board  of  health  in,  160 

Maine,   executive   council   in,    136 
law  enforcement  in,  436 
state  treasurer  in,  145 
taxation  in,  242 
Maryland,  budget  pian  in,  291 
efficiency  and  economy  in,  500 
governor  and  militia  in,   116 
governor's  pardoning  power  in, 

123 
governor's    power    of    appoint- 
ment in,  93 
governor's    power    of    previous 

pardon  in,   122 
governor's  power  to  reduce  ap- 
propriations in,  62 
governor's    recommendation    to 

legislature  in,  59 
governor's    removal    power    in, 

100 
health    administration    in,    374, 

381,  383,  388 
law  enforcement  in,  450,  467 
secretary  of  state  in,  138 
state  normal  schools,  328 
state  treasurer  in,   145 
state  wharfinger  in,  171 
taxation  in,  241,  245,  270,  271 
Massachusetts,  charitable  and  cor- 
rectional administration  in, 
339,  341,  346,  347.  348.  361, 
370 
civil  service  law  in,  195 
commissioner    of    education    in, 

3^2 
compulsory     school    attendance 

in,  322 
consolidation  of  boards  in,  171 


528 


INDEX 


Massachusetts,  economy  and  effi- 
ciency commission  in,  288, 
500 

elective  officers  in,  176 

executive  council  in,  136 

governor's    power    of    appoint- 
ment in,  93 

governor's  power  to  issue  regu- 
lations in,  68 

governor's  term  in,  46 

governor's  veto  in,  3s 

health    administration    in,    374, 
375.  382,  388,  393,  395,  398 

indebtedness  of,  2i7n. 

law    enforcement    in,    444,    448, 

449,  453,  454 
reelection  of  governor  in,  46 
school  district  in,  297 
secretary  of  state  in,  138,  139 
state  board  of  education  in,  308 
state  library  board  in,  331 
state  normal  schools,  328 
state  school  funds  in,  320 
supervision  of  local  accounts  in, 

276 
taxation  in,  218,  232,  242,  251, 

259,  270 
transportation  of  pupils  in,  300 
Michigan,    county    superintendent 

of  schools  in,  303 
governor's    removal    power    in, 

lOI 

health  administration  in,  390 
higher  education  in,  330 
law  enforcement  in,  439 
state    board    of    education    in, 

306 
state  normal  schools,  328 
state  university  board  in,  328 
taxation  in,  242,  259 
Militia,  governor's  command  over, 

29,  34,  109,  114-117,  437ff- 
Minnesota,  charitable  and  correc- 
tional administration  in,  341, 
348,  349,  353,  360 
efficiency  and  economy  in,  500 


Minnesota,    health   administration 
in,  390,  395 
law  enforcement  in,  470 
local    prosecuting    attorney    in, 

144,  145 
revenue  of,  216 
school  inspector  in,  314 
state  auditor  in,  148 
state  normal  schools,  328 
taxation  in,  248,  270,  272 
teachers'    employment    agencies 

in,  326 
Mississippi,   election  of  governor 

in,  42n. 
governor's  pardoning  power  in, 

123 
special  sessions  in,  57 
Missouri,    executive    dispensation 

in,  418 
governor's  appointive  power  in, 

93 
governor's  message  in,  58 
Montana,  law  enforcement  in,  439 
special  sessions  in,  57 
state  auditor  in,  148 
superintendent  of  public  instruc- 
tion in,  311 
taxation  in,  245 
Mortgages,  taxation  of,  272 


National  guard,  443,  449 

Nebraska,    county    superintendent 
of  schools  in,  303 
efficiency  and  economy  in,  500 
executive  officers  in,  137 
fractional  assessment  in,  228 
governor's    ex   officio    functions 

in,  130 
governor's  message  in,  58,  59 
governor's  salary  in,  48 
law  enforcement  in,  426,  470 
local    prosecuting    attorney    in, 

145        ^ 
Nevada,  special  sessions  in,  57 
superintendent  of  schools  in,  319 


529 


INDEX 


New  Hampshire,  executive  coun- 
cil in,  136 

governor's  warrants  in,  146 

superintendent  of  public  in- 
struction, 312 

state  purchasing  agent  for,  284 

state  treasurer  of,   145 
New  Jersey,  bureau  of  shell  fish- 
eries, 164 

civil  service  law  in,  195,  197, 198, 
200,  201,  202,  203,  205 

charitable  and  correctional  ad- 
ministration in,  349 

commissioner  of  public  roads  in, 
163 

county  superintendent  of  schools 
in,  319 

efficiency  and  economy  in,  500, 
501 

elective  officers  in,  i77n. 

governor's  removal  power  in, 
104 

governor's  term  in,  46 

governor's  veto  message  in,  64 

health  department  in,  160 

law  enforcement  in,  434-5,  4S4n. 

pardon  board  of,  124 

roads,  491 

secretary  of  state  in,  138 

short  ballot  in,  184 

state  board  of  health  in,  396 

state  normal  schools,  328 

state  treasurer  of,  145 

superintendent  of  public  instruc- 
tion in,  312 

taxation  in,  218,  219,  220,  221, 
222,  233,  235,  236,  245,  250, 
252,  253,  254,  259,  263 

township  school  unit  in,  300 
New  Mexico,  governor's  term  in, 
46 

taxation  in,  242 
New    York,    administrative    reor- 
ganization in,  502 

attorney-general  in,  140 

budget  in,  289,  291 


New  York,  charitable  and  correc- 
tional administration  in,  341, 
346,  347,  348,  349,  350,  356, 
357n.,  360,  362n.,  365,  366, 
370,  371 

civil  service  law,  195,  197,  198, 
199,  200,  201,  202,  204,  205 

compulsory  school  attendance 
in,  322 

consolidation  of  boards  in,  171 

council    of   appointment   in,   33, 

39,  177 
council  of  revision  in,  34,  36 
elective  officers  in,  176,  177 
enforcement  of  law  in,  406,  425, 

433,  443 
governor's    removal    power    in, 

100,  loi,  103,  III 
governor's  salary  in,  48 
governor's     special     emergency 

message  in,  59 
governor's  veto  in,  60,  64 
health    administration    in,    374, 

378,  379,  380,  382,  383,  386, 

389,  390,  393,  395,  397,  398 
impeachment    of    governor    in, 

56 
local    prosecuting    attorney    in, 

144,  145 
private  schools  in,  323 
public  indebtedness  in,  2i7n. 
school  districts  in,  297,  298 
secretary  of  state  in,  138 
short  ballot  in,  184 
state  auditor  in,  148 
state    board    of    education    in, 

306,  307,  308 
state    department   of    education 

in,  313,  314 
state  commissioner  of  education 

in,  312,  315 
state  library  in,  331 
state  superintendent  of  schools 

in,  308,  319 
supervision  of  local  accounts  in, 

277 


530 


INDEX 


New  York,  taxation  in,  218,  219, 
220,  221,  23s,  241,  242,  247, 
248,  252,  253,  256,  263,  272 
North  Carolina,  executive  council 
in,  136 
health  administration  in,  378 
no  governor's  veto  in,  59 
school  conference  in,  319 
North  Dakota,  charitable  and  cor- 
rectional administration  in, 

349 

law  enforcement  in,  4290. 
state  board  of  regents  in,  330 

Officers,  selection  of,  i73ff. 

state  and  local,  134,  424 
Ohio,  the  budget  in,  28S 

charitable  and  correctional  ad- 
ministration in,  346,  347, 348. 

349 
civil  service  law  in,  195,  198,  200, 

201,  202,  203,  204,  205,  206 
elective  officers  in,  176,  177 
health  administration  in,  396 
law  enforcement  in,  425 
position  of  governor  in,  40 
the  school  district  in.  297 
short  ballot  in,  183,  184 
state  auditor  in,  148 
state  library  board  in,  331 
state  superintendent  of  common 

schools  in,  315 
supervision  of  local  accounts  in, 

278,  281 
taxation  in,  222,  235,  237,  238, 

245,  248,  262 
Oklahoma,     attorney-general     in. 

154 
charitable  administration  in,  340 
executive  department  in,  137 
health    administration    in,    375, 

377,  380 
law    enforcement    in,    154.    436, 

456 
governor's  power  to  reduce  ap- 
propriations in,  62 


Oklahoma,  governor's  term  in,  46 
secretary  of  state  in,  139 
state  board  of  education  in,  307 
supervision  of  local  accounts  in, 

276 
taxation  in,  244 

Ordinance  power,  governor's,  67- 

69 
Oregon,  the  budget  in,  287,  288 
law  enforcement,  436,  457 
local   prosecuting   attorneys   in, 

145 
popular  recall  in,  185,  186 
secretary  of  state  in,  138 
state  accounting  methods  in,  281 
state  auditor  in,  146 
taxation  in,  268 

Pardoning  power,  governor's,  120- 
128 

Parole,  127,  368ff. 

Party  machine  and  law  enforce- 
ment, 411,  412,  417,  418 

Party,  political,  control  of  over 
the  administration,  9,  169, 
181,  182,  191,  192,  354 

Penal  administration,  362flF. 

Pennsylvania,  charitable  and  cor- 
rectional administration  in, 

347,  348 
constabulary  in,  116,  446 
contested    elections    for   gover- 
nor in,  44 
county  superintendent  of  schools 

in,  302 
efficiency  and  economy  in,  500 
executive  department  in,  80 
governor's  appointive  power  in. 

83,  91 

governor's  power  to  reduce  ap- 
propriations in,  62 

governor's  removal  power  in, 
100,   102 

governor's  veto  in,  60 

health  administration  in,  374, 
378.   380,  383,   388,  395 


5V 


INDEX 


Pennsylvania,  law  enforcement  in, 
443,  446ff.,  469 
local    prosecuting    attorney    in, 

145 
pardon  board  in,  124 
reeligibility  of  governor  in,  47 
secretary  of  state  in,  138 
the  short  ballot  in,  184 
state  treasurer  in,  145 
taxation  in,  241,  251,  254,  263, 

264n.,  271 
township  school  unit  in,  300 
Police  and  law  enforcement,  411, 
415,  424,  444ff- 
boards  of  metropolitan,  45off. 
department  of  state,  453,  455 
Popular  control  over  the  adminis- 
tration, g,  173,  185 
Previous  pardon,  governor's  pow- 
er of,  122 
Prison  labor,  364flF. 
Private  initiative  and  law  enforce- 
ment, 413 
Private    schools,    supervision    of, 

323 
Probation,  370 
Prosecuting  attorneys,   local,  144, 

I4S 
Public    opinion,    and    law    enact- 
ment, 403,  404 
and  law  enforcement,  410 
Public  service  commissions,  476 
Publication  of  assessment  lists,  237 
Purchase    of    supplies,    283,    284, 
3S5ff- 

Qualifications  of  governor,  44 
Quarantine,  establishment  of,  39^ 
Quasi-judicial  tribunals,   161,  386, 
456 

Railroads,  taxation  of,  2Siff.,  259 
Reassessment,  power  of,  247,  248 
Recall,  the  popular,  185-186 
Removal,  governor's  power  of,  42, 
08-113 


Removal  of  state  ofificers,  iSsff. 

Reorganization  of.  state  adminis- 
tration, 499ff. 

Rhode  Island,  charitable  and  cor- 
rectional administration   in, 

347,  348 
state  auditor  of,  148 
state  board  of  education  of,  306 
Roads,  promotion  of  good,  491  ff- 

School,  attendance,  compulsory  in, 

321-323 

board,  county,  301 

buildings,   supervision  of,  324 

courses  of  study  in,  325 

district,  297-300 

funds,  state,  320,  321 

teachers,  examination  and  cer- 
tification of,  326 

textbook  commission  in,  325 

textbook  supply  and  uniformity 

in,  325 
Schools,  consolidation  of,  300 

county  superintendent  of,  302 

state  normal,  327.  328 
Secretary   of    state,    138-140,    151. 

254,  279,  309 
Separation    of    powers,    principle 

of,  7,  161,  181 
law  enforcement  and,  415,  417? 

504,  S05 
Separation  of  sources  of  revenue, 

263-268 

Short  ballot,  i8oflf. 

South    Carolina,    governor's    par- 
doning power  in,  128 
law    enforcement   in,   425,    435, 
436 

South  Dakota,  charitable  and  cor- 
rectional  administration  in, 

349 
local    prosecuting    attorney    in. 

144 

superintendent  of  public  instruc- 
tion in,  312 

taxation  in,  242 


532 


INDEX 


Spoils  system,  192,  194 

State  superintendent  of  public  in- 
struction, 308-319 

Superintendent  of  schools,  county, 
302,  319,  320 

Supervision,  governor's  power  of, 

95-97 
Supplies,    purchase   of,   283,   284, 

355ff. 

Tax  assessor,  local,  224,  239,  244, 

24s 
Tax,   general   property,   217,   218, 

222,  225  ff.,  258 
Taxation,       apportionment-by-ex- 
penditure, 268 

classification  of  objects  of,  270- 
272 

of  inheritances,  273 

on  incomes,  273,  274 

power  of  reassessment  for,  247, 
248 

publication    of   assessment   lists 
of,  2^3,  238 

separation   of   sources   of,  263- 
268 

state,  2i7ff. 

by  state  tax  commissions,  241  ff, 

tax  inquisitor  law  in,  238 
Taxes,  assessment  of,  224 

collection  of,  218,  224,  276,  278, 
279 

equalization  of,  231  ff. 
Teachers,  examination  and  certifi- 
cation of,  326 

institutes,  327 
Tennessee,  governor  of  and  mili- 
tia, IIS 

law  enforcement  in,  469 

superintendent  of  public  instruc- 
tion in,  311 
Term  of  office,  governor's,  zZt  36, 

46       . 
Texas,  governor's  pardoning  pow- 
er in,  123 

governor's  message  in,  58 


Texas,   public   health   administra- 
tion in,  375 
revenue  of,  216 
state  library  board  in,  331 
state    supervision    of    local    ac- 
counts in,  276 
taxation  in,  255 
Textbooks,  supply  and  uniformity 

of  school,  325 
Township  imit  for  schools,  300 
Treasurer,  state,  145,  253,  254,  280 

Universities,  state,  328ff. 
Utah,  special  sessions,  57 
Utility  commissions,  public,  476 

Vermont,  budget  in,  289 
governor's  salary  in,  48 
public  health  administration  in, 

395 
state  board  of  education  in,  307 
state  purchasing  agent  in,  284 
state    superintendent    of    public 

instruction  in,  309 
taxation  in,  263,  264 
Veto,  governor's  power  of,  28,  30, 

ZZ,  34,  Z(i,  42,  59-67 
Virginia,  corporation  commission 

in,  456 
governor's    power    to    propose 

amendments  to  bill  in,  63 
governor's  term  in,  46 
state  board  of  education  of,  306 
superintendent    of    schools    in, 

319 

Washington,  bureau  of  inspection 
in,  281 
public  health  administration  in, 

375.  396 

taxation  in,  249,  272 
West  Virginia,  executive  dispen- 
sation in,  419 

governor's    military    power    in, 
117 

law  enforcement  in,  44oflF. 


533 


INDEX 


West  Virginia,  state  superinten- 
dent of  public  instruction 
in,  315 

taxation  in,  242 
Wisconsin,  the  budget  in,  289 

charitable  and  correctional  ad- 
ministration, 349,353.354,360 

civil   service    law    in,    195,    198, 
199,  200,  201,  202,  205 

consolidated  schools  in,  300 

county  superintendent  of  schools 
in,  303 

governor's    removal    power   in, 
100,  108 


Wisconsin,    law    enforcement    in, 

433.  454,  470 
public  health  administration  in, 

390 
secretary  of  state  in,  138 
state  auditor  in,  146 
state    superintendent   of   public 

instruction  in,  311 
supervision  of  local  accounts  in, 

277,  278 
supervision  of  school  buildings 

in,  324 
taxation  in,  239,  242,  245,  246, 

248,  259,  273 

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